In a consumer oriented society, products and services are extended with warranties with regard to the quality, durability, performance and nature of the product or service. These warranties may be either express or implied. Breach of an express warranty invites legal implications. In this article, we will briefly explore the nuances of express warranty.
Condition and warranty
Before getting into the topic of express warranty, we need to understand what a condition and warranty are in a contract of sale for a product/goods. Express warranty in India finds its roots in the Sales of Goods Act of 1930. Section 12 of the Sale of Goods Act of 1930, explains condition and warranty. A buyer buys a product depending on some conditions and warranties stipulated in the policy of the sale contract. After verifying the same, if the buyer feels that it meets his or her requirements, he/she will buy the product.
As per Section 12, a condition is a stipulation where the seller or manufacturer gives an affirmation or a promise that the particular good is made for a particular purpose and the product is absolutely fit for that particular purpose. This forms the main part of the contract between the seller/manufacturer and the buyer and if any breach of this stipulation occurs, the contract of such a nature is treated as repudiated and the buyer can reject the product/good and claim the price for loss/damages.
Whereas warranty is only treated as collateral to the main condition, the breach of which will not entitle the buyer to reject the product/good completely, damages can be claimed to the extent of the loss earned by the buyer, and the remaining part of the contract can still be completed. Furthermore, the section explains the distinction between condition and warranty in a contract of sale.
Whether the stipulation given in a product/good is a condition or a warranty can be ascertained by the construction of the contract. Sometimes the condition given may be a warranty and vice versa. So the construction of the contract distinguishes the condition from a warranty.
For example: A, a buyer, approaches a truck dealer, B, to purchase the same for conveying vehicles to different parts of the country. B suggests a medium quality truck for A to purchase. A, after going through the conditions, was impressed that the conditions given in the policy of the contract of sale of the truck fulfilled his requirements, and he bought the truck. Later, A finds that the truck is not fit for carrying vehicles but for other purposes only. A approaches for the return of the truck and the recovery of money from B. Here, the stipulation is regarding the performance of the truck, which is not fulfilled as per the condition given in the contract of sale. Hence, the buyer has incurred the right to return the vehicle and claim damages. A breach of condition gives rise to product liability for the seller and this breach of condition can either be treated as a breach of condition or of warranty, depending on the construction of the contract of sale.
Laws of express warranty
Express warranty is explained in both the Sale of Goods Act of 1930 (previously part of the Indian Contract Act of 1872) and the Consumer Protection Act of 2019.
In the Sale of Goods Act of 1930, express warranties are explained in Section 37. As per Section 37, express warranties are those warranties that are expressly given, whether oral or written, regarding the quality, standard and safety of the product or service in the policy of the contract of sale or service. The seller of the product/goods or the service provider expressly gives such a warranty that, in case of a faulty product or service or if the product or service does not work as per expectations or the warranty given, the seller assures to repair, replace or refund the same within a stipulated period of time. Based on these warranties, the buyer buys the product or avails of a service.
In the Consumer Protection Act, 2019, the term express warranty has been expressed in an inclusive manner. Section 2 of the said Act explain express warranty that any material statement, affirmation of fact, promise or description warranting that it conforms to such
material statement, affirmation, promise or description and includes any sample or model of a product, the whole of such product conforms to such sample or model.
Express warranty encompasses any material statement, an affirmation of a factual representation, promise or description concerning the product/good asserting that the product/good conforms to such material statement, affirmation, promise or description and this material statement, affirmation, promise or description includes not only a sample or model of a particular product/good but also applies to the entirety of that specific product.
In Indian law, the consumer’s rights mainly originate from the contract law of warranty and the tort law of negligence and strict liability. The law is grounded in the principle “caveat emptor,” meaning “let the seller beware” (Section 16, Sale of Goods Act of 1930) . This rule places the seller accountable for any inconvenience caused to the buyer arising from the purchase of the product/goods or the utilisation of any services. There was ambiguity in the laws before the introduction of the Consumer Protection Act of 2019, regarding the provision of compensation to consumers. Therefore, a complete chapter was introduced in this regard, which provides detailed information on the liabilities of product manufacturers, sellers, and product service providers. Section 84 of the said Act clearly mentions that a deviation from express warranty is one of the grounds for a product liability claim.
Now the question arises how do we distinguish a breach of express warranty from a breach of condition. There are situations in which we can consider a breach of condition as a breach of express warranty.
For example:
A, the buyer, approaches shopkeeper B to purchase a high quality product priced at Rs.999/. However, B, the shopkeeper, suggests an alternative product of slightly lower quality with a price of Rs.799/-. A decides to purchase the lower-quality product with a price difference of Rs.200/-. Here, the buyer has the option to either reject the product and claim a full refund or keep the product and seek damages to the extent of the loss incurred.
The above scenario is called a voluntary waiver by the buyer.
Another example of a breach of condition resulting in a breach of express warranty is the acceptance of goods by the buyer.
If the buyer is given the option to verify the product before buying or accepting the goods/product and the buyer buys without verifying the conditions of the contract for sale, then after receiving the product, if the buyer finds there’s a defect in the product or if it is of low quality, then the buyer has no right to reject the product. Here, the condition becomes a warranty, hence the breach of express warranty.
Modern concept in commerce and relevance of product or service liability
As we can observe, the traditional marketplace still retains its pomp and grandeur, and with the modernisation of marketplaces, accessibility has reached new heights. The advent of the internet and online platforms has significantly expanded the availability of goods and services, bringing convenience to a whole new level. Simultaneously, it increased the fraudulent practices and sale of products based on misleading information, which leads to a breach of warranty. In this scenario, advertisements play a big role in the express warranty of the products. People believe such advertisements and buy the products. A breach of express warranty happens in most cases when conflict arises as advertisements give misleading information and the actual product and contract of sale of the product give different information and experiences to the buyer.
E-commerce
Another scenario is ecommerce. In the largest consumerist society, like India, new e-commerce companies emerge on a daily basis. These e-commerce companies commonly provide express warranties for their products, primarily due to the nature of online shopping, where customers lack the opportunity to physically try on or examine merchandise before making a purchase.
The way the product functions and appears upon receipt can significantly deviate from the customer’s initial expectations during online browsing. The incorporation of an express warranty provides them with a kind of assurance that any issues with the purchase will be addressed in some way, whether by way of refund, repair or replacement.
To give an example, a buyer buys an outfit online but upon arrival, he discovers that the outfit is of the wrong size and colour or of poor quality. Since there’s an express warranty, the consumer has the right to a refund or replacement.
Nowadays, the sale of electric vehicles is also done online. Manufacturers and sellers commonly promote specific warranties for repairs on the vehicles they sell, often outlining the conditions related to mileage and restricting the duration of ownership and the scope of coverage. Once the vehicle has been owned for a specified duration or driven beyond the mileage limit, the applicability of the express warranty ceases. In most cases, a claim for product liability arises due to the express warranty provided in the contract of sale. In this scenario, the express warranty functions as a shield for the buyers to get redressed.
Case laws related to the breach of express warranty
Case laws related to breach of express warranty derive mostly from breach of warranty of contract, negligence and strict liability of tort.
In the most iconic case of G. Mckenzie & Co. (1919) Ltd. vs. Nagendra Nath Mahalanabish (1945), this has been highlighted as two independent causes of action giving rise to damages to the customer, one in the law of contract against the seller and the other in the law of tort as to the manufacturer.
The dependence on contractual arrangements becomes more evident when examining the case of Ernit Everest Ltd. vs. C.G. Abraham (2003). In this case, the manufacturers of faulty asbestos sheets were deemed accountable under Section 16 of the Sale of Goods Act, as the seller was recognised as the agent of the manufacturers. This establishes a distinct contractual connection between the manufacturer and the consumer.
Brown vs. Ford Motor Co. (1988)
In the landmark case of Brown vs. Ford Motor Co. (1988), the Court ruled in favour of the plaintiff, who had filed a lawsuit against the defendant automobile manufacturer. The plaintiff’s complaint alleged that the manufacturer had breached its express warranty by falsely advertising that the car purchased by the plaintiff had a “fuel-efficient engine.” The court agreed with the plaintiff’s assertion, finding that the vehicle’s actual gas mileage was significantly worse than what had been advertised.
Throughout the legal proceedings, the court meticulously examined the evidence presented by both parties. The plaintiff provided compelling documentation demonstrating the discrepancy between the advertised fuel efficiency and the car’s actual performance. On the other hand, the manufacturer put forth various arguments in its defence, attempting to justify the difference in gas mileage. However, the court was not persuaded by the manufacturer’s explanations and ultimately concluded that the manufacturer had made false and misleading statements regarding the vehicle’s fuel efficiency.
As a result of the court’s decision, the manufacturer was held liable for breaching its express warranty. The court awarded the plaintiff damages to compensate for the financial losses incurred due to the car’s poor fuel economy. This case set a significant precedent in consumer protection law, emphasising the importance of accurate and truthful advertising by manufacturers.
Jarvis vs. Swan’s Down Cake Shop (1959)
In the landmark case of Jarvis vs. Swan’s Down Cake Shop (1959), the Court grappled with the issue of express warranty in the context of food labelling. The plaintiff, Ms. Jarvis, alleged that the defendant bakery, Swan’s Down Cake Shop, had breached its express warranty by falsely advertising a cake as containing “fresh, ripe strawberries.”
The facts of the case revealed that Ms. Jarvis had purchased the cake in reliance on the bakery’s advertisement, which prominently featured an image of a luscious strawberry cake and the words “fresh, ripe strawberries” in bold letters. However, upon consuming the cake, Ms. Jarvis discovered to her dismay that the strawberries were not fresh or ripe at all, but were in fact canned strawberries.
Ms. Jarvis promptly filed a lawsuit against the bakery, alleging breach of express warranty. The bakery defended its actions, arguing that the advertisement was merely a “puff” or an exaggeration and not a legally enforceable promise. The bakery also contended that Ms. Jarvis had failed to mitigate her damages by not returning the cake or requesting a refund before filing the lawsuit.
The trial Court rejected the bakery’s arguments and ruled in favour of Ms. Jarvis. The Court found that the bakery’s advertisement constituted an express warranty that the cake contained fresh, ripe strawberries. The court also held that Ms. Jarvis was not required to return the cake or request a refund before filing the lawsuit, as she had already suffered damages by consuming the cake with the expectation that it contained fresh strawberries.
On appeal, the California Court of Appeal affirmed the trial Court’s decision. The Appellate Court agreed that the bakery’s advertisement created an express warranty and that Ms. Jarvis had reasonably relied on that warranty when purchasing the cake. The Court also rejected the bakery’s argument that Ms. Jarvis had failed to mitigate her damages, finding that she had acted reasonably in filing the lawsuit after discovering the breach of warranty.
Jarvis vs. Swan’s Down Cake Shop case serves as a caution for businesses regarding the importance of accurate and truthful advertising. It also underscores the rights of consumers to rely on express warranties made by businesses and to seek legal remedies for breaches of those warranties.
Jones vs. Sears, Roebuck & Co. (1970)
The case of Jones vs. Sears, Roebuck & Co. (1970) is a landmark decision in the area of product warranties. The case involved the purchase of a water heater from Sears, Roebuck & Co. that was advertised as having a “lifetime warranty.” However, when the water heater broke down after a few years, Sears refused to honour the warranty, claiming that the warranty was only valid for the original purchaser and was not transferable to subsequent owners.
The plaintiff in the case, Mr. Jones, argued that the warranty was an express warranty and that Sears was therefore liable for breach of warranty. The Court agreed with Mr. Jones, finding that the advertisement for the water heater created an express warranty that the water heater would last for the lifetime of the original purchaser. The Court also found that Sears had breached this warranty by refusing to honour it.
The Court’s decision in Jones vs. Sears, Roebuck & Co., is significant for several reasons. First, it established that express warranties can be created through advertising. Second, it held that manufacturers and retailers are liable for breach of warranty if they fail to honour express warranties. Third, it provided guidance on the interpretation of lifetime warranties, holding that such warranties are valid and enforceable.
The Jones vs. Sears, Roebuck & Co. decision has been cited in numerous subsequent cases involving product warranties. It has also been influential in the development of state laws governing product warranties. As a result of this decision, consumers are better protected when it comes to product warranties.
Conclusion
As we conclude, it is to be noted that the law of express warranty has a far and wide reach in consumerist society. The law related to express warranty has developed through case laws as well as statutes. Today, people have become more aware of the fact that the law of express warranty and the breach of the same ensure legal rights for consumers to avail compensation and redressal, along with refunds, repair and replacements. We should acknowledge that the role of e-commerce is significant and popular in this regard.
A ‘bot’ or ‘robot’ is a set of instructions and commands programmed in computer software to execute specific scripted or automated tasks to stimulate a near human environment or behaviour. They are programmed to perform tasks at a fast pace with accuracy and efficiency in inhumanely large volumes. As we increasingly rely on digital platforms for communication, commerce and information sharing, our vulnerability to cyber threats has surged. Cybersecurity has become a critical necessity to protect individuals, businesses and governments from the ever-evolving landscape of online threats, such as botnet attacks.
Nature and types of bots
‘Bots’ began making a name for themselves in the 1990’s as the good little worker bees doing their queen’s bidding. They were seen as a highly efficient and powerful resource in the computer world. Hence, it is the ‘intent of usage’ that truly determines the good or bad nature of the bots.
The ‘good’ bots
It can be simply stated that bots that are programmed to automate labour-intensive tasks such as combing through huge amounts of data sets, getting specific information quickly and accurately, and analytics, etc. in businesses, websites, and corporations can be termed ‘good bots’.
Here are a few examples of good:
Chatbots- These types of bots are often found on websites or apps to enhance the customer experience through AI algorithms. They generally engage in assisting customers by communicating and resolving basic queries.
Shopping bots- These types of bots typically analyse the user behaviour on different e-commerce websites to improve customer satisfaction by providing correct recommendations and improving their online shopping experience.
Social media bots- These types of bots automate certain tasks on online platforms such as Facebook, Instagram, Snapchat, etc. For example, – Public accounts on Instagram or business accounts on WhatsApp have the option to respond to queries with an automated response until an actual person resolves the query.
Monitoring bots- These bots are used by websites to track their overall performance. Such bots run in the background to collect data on the health of the website and track the changes in its workings.
Web scraping bots- These types of bots generally engage in the extraction of data (oftentimes without the explicit consent of the website user or website owner) from different websites for various purposes, such as creating databases, analysing the collected data, etc.
Spider bots- These bots are also called ‘web crawlers’ or ‘internet crawlers’. The spider bots are programmed to read everything available on the internet and analyse the information into categorised databases. These bots help search engines rank the content and filter out obsolete information.
The ‘bad’ bots
As a coin with two sides, bad bots do exist. These ‘bad bots’ are used with malicious and criminal intent and are widely known, even by the general public. The greatest example is the Trojan Horse programme, which began the popularity of malicious codes used by cybercriminals to gain access to computers and infect them with viruses to collect personal and sensitive information.
Here are the following examples of bad bots:
Spam bots- These bots are programmed to post similar content, like emails, newsletters, links, advertisements, etc., repeatedly for malicious purposes.
Distributed Denial of Service (DDoS) Bots- DDoS bots often flood a website with massive amounts of traffic, causing it to crash or show an error to its users. Such erroneous behaviour on the website results in damage to the reputation of the site and its owner/brand and also causes financial loss to the site.
Imposter bots- These bots deceptively impersonate the behaviour of actual human users/customers and circumvent online security and authentication measures. Such bots are difficult to discover as they mimic human behaviour and patterns perfectly.
Inventory denial attack bots- Such bots are found on shopping websites and e-commerce stores. They mimic the behaviour of users and repeatedly place a product into a shopping cart without any actual transaction taking place. This process tricks the website/store into believing that the item is out of stock, but it’s being put into the carts of various users without their knowledge.
Credential filing attack bots- These bots are responsible for fraudulently logging into user accounts to steal credentials or sensitive information, leading to identity theft, fraud, etc.
What are ‘bot attacks’ and their different types in cybersecurity
Bot attacks are a type of cyberattack that uses automated scripts to disrupt a site, steal data, perform fraudulent purchases, or carry out any other malicious actions. These attacks are often carried out by botnets, which are networks of hijacked computer devices used to execute various scams and cyberattacks. In 2023, over 1.45 billion bot attacks were detected.
Bad bots pose potential threats to systems, software and devices that utilise the internet. These risks and threats can manifest themselves in the forms of – content manipulation on online social platforms, data leaks or privacy breaches, negatively affecting user engagement on business websites, posting fake reviews, fraudulently taking over online accounts, etc.
Types of bot attacks
There are various types of bot attacks. Here are the following examples:
Device bricking: In device breaking, a device is infected and its contents are deleted. This renders the device unusable or makes the work stop altogether. Such an attack is conducted in multiple phases.
Spam and phishing: A high volume of unsolicited emails or messages containing fishing links aiming to trick recipients into revealing sensitive information are sent through bots. The sole purpose of this type of attack is to spread malicious content, steal credentials or install malware on the victim’s system.
Brute force attacks: A brute force attack is a boatneck attack that involves automated and relentless attempts to gain unauthorised access by systematically guessing all possible combinations of usernames and passwords. It exploits vulnerabilities in the login systems by guessing commonly used or extremely weak login credentials of users.
Cryptojacking: The objective of this particular type of bot attack is to illicitly mine cryptocurrencies. Using the victims’ computing powers.
Distributed Denial of Service Attacks (DDoS): This type of attack utilises a network of compromised devices to overwhelm a target server or network with a flood of traffic, rendering it inaccessible to legitimate users.
Ad fraud: The bots in this type of fraud mimic human behaviour to interact with online ads, that is, through ‘click ad; behaviour, and generate false impressions or clicks to defraud advertisers. The main aim of this type of attack is to deceptively advertise fraudulent ads and get financial gains through these practices.
Common targets of bot attacks
Different types of bots are coded to target a specific audience or user base. Some of the common targets of bot attacks include:
Websites: Bot attacks can target websites for various purposes, such as to overwhelm servers with web scraping for data extraction and to exploit vulnerabilities in web applications of websites for unauthorised access.
Online shops: The number of new errors in D2C commerce and e-commerce websites or online shopping platforms has increased in the past couple of years. Cybercriminals have started to engage in activities where they try to manipulate prices or web scrape to gain a competitive advantage or conduct fraudulent transactions to ruin the repetition and prestige of those online shops or e-commerce websites for new users.
Financial institutions: Cybercriminals often try to gain access to financial platforms or banking accounts that are available online. They often try to gain the passwords or credentials of the users, such as credit card information, banking login passwords and usernames.
Personal information: Oftentimes, individual users are attacked to steal sensitive information relating to their physical, physiological, financial or online activities. Cybercriminals often use these credentials or attributes for fraudulent purposes, such as creating fake accounts, committing online theft, identity theft, etc.
Media and entertainment industry: Recently, it has been seen that the media and entertainment industry has been hit by botnet attacks that are responsible for distributing pirated content, engaging in click fraud for advertising revenue or disrupting streaming services.
Government and healthcare systems: Bots or botnets attack government or healthcare systems to gain unauthorised access to sensitive data. In the event that a government website or database is hacked by a botnet attack, it is done to disrupt critical services through either DDoS attacks or by compromising the infrastructure for a geopolitical reason. In the case of the healthcare system, cybercriminals are more concerned with gaining unauthorised access to sensitive patient data describing health care services or exploiting vulnerabilities in medical devices to manipulate the patients’ health.
Real-life examples of bot attacks
Cybercrime around the world has exploded, with schemes and scams becoming a common sight. The use of the internet by criminals and nefarious organisations to extract money and information has reached an all-time high.
Millions of spam messages and emails are sent with fraudulent website links, fake accounts phishing for information, and fraud ads that mislead the common civilian.
The cybercriminals use ‘botnets’, i.e., a large-scale network of web-based or internet-based software applications (bots), to infiltrate and infect the devices of internet users. Here are a few notable real-life bot attacks:
Kraken (2008) – It was one of the biggest botnet attacks in history. At its peak, it controlled over 500,000 bots, with each bot capable of sending 600,000 spam emails per day.
Mariposa (2008) – This botnet attack specialised in stealing sensitive information such as phone numbers, credit card numbers and passwords from their accounts on financial websites. It spreads its malware through fraudulent digital ads. The botnet attack was the creation of Spanish cybercriminals who used a malware programme called ‘Butterfly Bot’, hence the name ‘Mariposa’ (it means ‘Butterfly’ in Spanish).
EarthLink Spammer (2000) – It was the first botnet to be publicly recognised in 2000 for sending phishing emails in bulk to collect sensitive customer information, such as credit card information. Around 1.25 million spam messages were sent in one year. EarthLink sued the botnet attackers for $25 million.
Methbot (2016) – This bot attack was masterminded by Russian criminals. It was labelled as the biggest digital ad fraud ever, perpetrated by faking clicks on video advertisements. The attack was unprecedented in its scale and sophistication. Methbot used a network of compromised computers to simulate human behaviour, clicking on video ads without any real users ever seeing them. The criminals behind Methbot were able to generate millions of fake clicks per day, earning millions of dollars in fraudulent advertising revenue.
The Methbot attack was a major wake-up call for the digital advertising industry. It exposed the vulnerability of online advertising to fraud and raised concerns about the integrity of the entire ecosystem. In the aftermath of Methbot, advertisers and publishers have taken steps to improve their defences against fraud, but the threat remains significant.
Mirai (2016) – This botnet was the genius and malicious creation of three college-going Minecraft players. Paras Jha initially gathered around 400,000 bots and unleashed them multiple times on Rutger’s University’s network, unleashing havoc on the campus, students and staff alike. The botnet attack was classified as a type of Distributed Denial of Service (DDoS) attack.
These attacks can lead to data theft, account takeovers, and other forms of cybercrime, making it essential for businesses and individuals to implement effective security measures to protect their digital assets and personal information.
Prevention of bot attacks – detection and challenges
How to detect botnet attacks
Below are some signs that should be evaluated to detect if a botnet attack has taken over your computer or device.
Updating computers or devices: Cybercriminals more often than not programme their malicious botnets to attack the simple instructions in a computer, i.e., disabling the functions of computers to be updated or the Anti-Virus software to malfunction/glitch.
Slow speed of computer: The programmes of software in the computer of the device run unusually slower than the normal speed. For example, the files take longer to open, or the screen of the computer or device freezes or completely blacks out.
Unauthorised actions on email: Mostly botnet attacks are done through sending malicious spam emails or phishing. If they are opened or any link attached to them is accessed by the customer, it can easily infect the device at a rapid rate. Also, possibly hack into the customer’s email account and gain unauthorised access to it.
Social media accounts being hacked: Hacked social media accounts such as Instagram, Snapchat, or Facebook can be used by cybercriminals to send infected malware to your friends and family through links and picture messages. Once such messages are opened or downloaded by the receiving party, they can further spread.
Prevention techniques
To protect against bot attacks, organisations can implement various measures, such as:
Time-analysis: In the case of a business or website, a bot can be detected by the speed or time taken to perform certain tasks, such as filling out forms, passwords, login IDs used, etc.
Captcha: Implement Captcha mechanisms to differentiate between human and bot traffic. This will prevent bots from accessing sensitive forms or content in the case of an online business or website.
Honeypots: Honeypots are concealed elements strategically incorporated into user registration forms to thwart automated submissions by bots. While imperceptible to users, these fields are detectable by birds. When information is applied to the concealed fields, it serves as an indicator that a spambot is attempting to complete the form. The implementation of this inconspicuous field can be achieved through programming in HTML or other.
Firewalls: Always install and enable a firewall to detect any sort of botnet communication or attack.
Limit or blacklist IP addresses: Avoid websites that do not provide authenticity. Limit or restrict access by enabling ‘restrict access’ to certain sites on your web browser or Anti-Virus software. Always avoid pop-ups or pop-up ads. If possible, block all pop-up ads in your browser.
Validate email addresses and phone numbers: Use multi-factor authentication to access email addresses and phone numbers. Always make sure the incoming phone numbers are legitimate and not bots or spammers.
Legal framework
India is in the process of developing a comprehensive legal framework to regulate the use of bots. The need for such a framework has arisen due to the increasing prevalence and sophistication of bots, as well as the potential risks and challenges associated with their use. The government has recognised the importance of balancing the benefits of bots with the need to protect consumers and ensure responsible use.
While a comprehensive legal framework for bots is still in the works, certain aspects of bots are currently covered under various existing laws. These laws provide a foundation for addressing some of the legal issues surrounding bots.
Data privacy: The Information Technology Act, 2000, addresses issues related to data protection and electronic contracts. This law requires organisations to obtain consent from individuals before collecting, using, or disclosing their personal information. It also imposes certain obligations on organisations regarding the storage and protection of personal data.
Consumer protection: The Consumer Protection Act, 1986, protects consumers from unfair trade practices and defective goods and services. This law may be applicable to bots that are used in e-commerce or other consumer transactions. For example, consumers may have the right to a refund or replacement if a bot-powered product or service does not perform as advertised.
Intellectual property rights: The Copyright Act, 1957, and the Patents Act, 1970, provide protection for intellectual property rights, including software and algorithms. These laws may be relevant to bots that incorporate copyrighted or patented material. For example, a bot that uses copyrighted content without permission may be subject to legal action.
Challenges and future considerations
Despite the existence of these laws, there are still a number of challenges and issues that need to be addressed in the development of a comprehensive legal framework for bots.
Liability: Determining liability for harm caused by bots is a complex issue. In some cases, the bot developer may be liable, while in other cases, the user or the platform hosting the bot may be responsible.
Transparency and accountability: Ensuring transparency and accountability in the use of bots is important to protect consumers and prevent abuse. This may involve requiring bot developers to disclose information about the bot’s functionality and purpose, as well as implementing mechanisms for users to report any harmful or deceptive behaviour.
International cooperation: The regulation of bots is a global issue, as bots can operate across borders. International cooperation will be necessary to develop harmonised approaches to bot regulation and address cross-border issues.
What is cybersecurity
The term ‘cybersecurity’ can be considered an umbrella term for the defence mechanism deployed against malicious attacks done by cybercriminals. Cybersecurity is a multi-faceted field that involves a combination of technical measures, such as firewalls, intrusion detection and prevention systems, and encryption, as well as organisational policies and procedures, such as security awareness training for employees and regular security audits. It is an ongoing process that requires constant vigilance and adaptation to new and evolving threats.
Some of the key areas of cybersecurity include:
Network security: Protecting the network infrastructure from unauthorised access, Denial of Service (DoS) attacks, and other threats.
Endpoint security: Securing individual devices such as computers, smartphones, and tablets from malware, phishing attacks, and other threats.
Data security: Protecting sensitive data from unauthorised access, theft, or loss.
Application security: Ensuring that software applications are developed and deployed securely to prevent vulnerabilities that could be exploited by attackers.
Cloud security: Protecting data and applications stored in the cloud from unauthorised access, theft, or loss.
Cybersecurity is essential for businesses of all sizes, as well as for governments and individuals. By implementing effective cybersecurity measures, organisations can protect their valuable assets, maintain their reputation, and comply with relevant laws and regulations.
Importance of cybersecurity
The cyber landscape is dynamic, with malicious actors employing sophisticated techniques to exploit systems and networks. From ransomware to data bridges and identity theft, the range of ‘Cyber Threats’ is vast and continuously evolving. Such threats not only jeopardise confidentiality and integrity but also pose a high risk in the form of the easy availability of data, which can pose a major threat to the national and economic stability of a state. The importance of cybersecurity can be understood as:
With the continuous expansion of cybersecurity attacks and data breaches, it is predicted that global spending on cybersecurity solutions will increase and eventually surpass the $260 billion mark by 2026.
Here are some of the best cybersecurity practices:
Automated threat detection: AI offers groundbreaking tools for detecting and mitigating threats, enhancing the efficiency of cybersecurity operations.
Training and skill development: Right-skilled individuals, equipped with knowledge about AI’s role in cybersecurity, can deploy tools effectively and educate others in the organisation.
Full visibility: Achieving full visibility across different systems and tools is crucial for effective cybersecurity in the age of AI. To understand the capability of a system or tool, ensure cyber-awareness.
Cyber security tips
When it comes to securing your devices and online systems against cyber attacks, it is the sole responsibility of the user to be more cyber aware. Here are a few simple tips to ensure your devices and systems are kept safe against cyber crimes:
Always use Anti-Virus protection software to ensure your laptops, computers, and mobile phones are secure in case of a malicious attack. Such software blocks malicious viruses from entering your device and potentially corrupting your data.
Enable the firewall on your laptops and computers. These are important for ensuring your data is not hacked or becomes fodder for malicious online activities.
Use a strong password for critical files, folders, apps, devices, accounts, etc. Make sure your password is not a simple or common phrase or term. Instead, use a mix of complex letters, numbers, and symbols.
Be suspicious of unknown emails, phone calls, or messages. It is advised to never open emails or messages sent by an unknown sender. These are called ‘phishing scams’ and are used with the malicious intention of making the user divulge sensitive information or access to the device.
Regularly back-up your online data. It is generally advised for the user to keep their data on at least two different devices for online security purposes, such as a hard drive (external) and cloud storage.
Update your software and operating systems. Any vulnerabilities in your systems can become a critical access point for hackers.
Always use a VPN (Virtual Private Network) server. By using a VPN, the user ensures that the traffic to and fro from the device is encrypted. The data on your device is difficult for a malicious outsider to access. It’s best to avoid public networks or WiFi.
Risks or privacy with the rise of ai and cyber-criminals
AI technology has provided for every industry, from fashion to finance to agriculture and beyond. This technology has continuously laid the foundations for the future of the digital revolution. It challenges the core traditional norms of how data and privacy may be viewed.
The rapid rise of AI and AI-related tools has raised ethical questions about data protection, human privacy, social responsibility, cybercrime, and societal impact. The navigation of such questions has led to concerns relating to the misuse of such technology.
Cybercriminals are utilising AI and AI tools to infiltrate the computers of users and businesses. It is predicted that the newer generation of bot attacks will use AI technology. This type of technology allows access to large numbers of voice, handwriting, language, and data sets.
Privacy paradox: AI’s potential to infer sensitive information poses risks of unauthorised data dissemination, identity theft and unwarranted surveillance. The need for self-regulation in the use of AI is what needs to be understood.
Ethical and societal issues: IEEE, in its global mission initiative, has highlighted the importance of how AI should ‘prioritise human welfare, ensuring that ethical considerations aren’t mere afterthoughts’. It very conveniently highlights that bots must comply with ethical norms while protecting user privacy and confidentiality.
Individual and organisational privacy: AI’s complexity and data analysis capabilities present challenges to individual and organisational privacy. There will always be an issue of bias and discrimination.
Conclusion
In the age of AI, cyber security is essential to prevent bot attacks and safeguard the data and privacy of users and businesses. Acquiring cyber security skills and implementing best practices are crucial steps to navigating the digital front securely. Integration of AI into cyber security can offer a groundbreaking tool for thread detection but it also amplifies the capabilities of cyber adversaries.
This article is written by Tisha Agrawal. The article deals with the case of Dhulabhai and Ors. vs. State of Madhya Pradesh (1968), with reference to its facts, issues raised, arguments made, the judgement, as well as the concerned legal provisions of the Code of Civil Procedure 1908, the Constitution of India, and the Madhya Pradesh Sales Tax (Act 30 of 1950).
It has been published by Rachit Garg.
Table of Contents
Introduction
The case of Dhulabhai and ors. vs. State of Madhya Pradesh (1969), deals with the jurisdictional issue of civil courts to try all suits unless it is barred and the illegal levy of tax on the tobacco dealers of Madhya Bharat. It is a constitutional bench judgement and is still relied on for its extensive reasoning and tests laid out for considering the jurisdiction of civil courts. Via the suit, the appellants had challenged the assessment provisions as being ultra vires and demanded the refund of tax collected from them under the said notification.
It was held that the challenge to provisions of the concerned Act as ultra vires cannot be brought before the tribunals constituted under the Act. The High Court cannot go into deciding that question by revision or reference from the decision of Tribunals. Most importantly, the case throws light on Section 9 of the Code of Civil Procedure, 1908 which empowers the courts to try all civil suits unless barred. Recently, this case was reiterated by the Supreme Court in the case of M. Hariharasudhan vs. R. Karmegam (2019).
Details of the Case
Case name:Dhulabhai and ors. vs. State of Madhya Pradesh
Important provisions: Section 3, 5 & 17 of the Madhya Bharat Sales Tax Act (30 of 1950); Section 9 & 80 of the Code of Civil Procedure, 1860; Article 301 & 304 A of the Indian Constitution.
Bench: M. Hidayatullah, C.J., R.S. Bachawat, C.A. Vaidyialingam, K.S. Hegde, A.N. Grover, J.
Petitioner/Appellant: Dhulabhai
Respondents: State of Madhya Pradesh
Judgement date: April 05, 1968
Facts of the case
The appellants in the case are dealers of tobacco, conducting their business from Ujjain (Madhya Pradesh). The State of Madhya Pradesh was formed on 1st November, 1955. The primary work undertaken by the appellants was purchasing and selling tobacco used for the purposes of eating, smoking, and preparing bidis. They got tobacco for them locally and also imported it from other states. In 1950, an Act called the Madhya Bharat Sales Tax Act, 1950 came into force. The Act stated, under Section 3, that every dealer whose business in the previous year, in respect of sales or supplies of goods, exceeded Rs. 5000/- and in instances where the sale exceeded Rs. 12000/- of those who are not manufacturer or importer, will have to pay taxes in respect of such supply of goods.
As per Section 5, the tax was a single point tax and the government might notify the point of sales at which the tax is payable. The Act also fixed the minimum and maximum rate of tax and left the actual rate to be notified by the Government. Subsequently, the government released several notifications and imposed different rates on tobacco. The authorities started collecting varying amounts from the dealers. Therefore, the appellants served a notice under Section 80 of the Code of Civil Procedure, 1908, and also filed suits for a refund of the tax on the grounds of illegal collection and violating the right guaranteed by Article 301 of the Constitution of India.
The first challenge to this Act was made in the case of Bhailal vs. State of Madhya Pradesh (1960). In this case, the High Court of Madhya Pradesh declared the notifications released in furtherance to the Act as violative of Article 301 of the Constitution of India. The ground taken by the court was that there was an illegal levy of taxes on importers when an equal tax was not levied on similar goods produced in the State.
A similar petition was filed to challenge the levy of tax on the same grounds in the present case. Relying on the judgement of Bhailal, the trial courts decreed the suits filed by the appellants. In an appeal before the High Court, it was contended by the state that the tax could not be imposed in view of Article 301. It was also argued that the suits were not maintainable in view of Section 17 of the Act which provides that no assessment made under the act shall be called into question in any court. The High Court thus held that the suits were incompetent for trial. An appeal was then filed before the Hon’ble Supreme Court.
Issues raised
Whether the collection of different rates of taxes from the importer or manufacturer violates Article 301 and Article 304(a) of the Constitution of India?
Whether the suit filed by the appellants is maintainable in view of Section 17 of the Madhya Bharat Sales Tax Act, 1950?
Whether the relief of repayment has to be sought by the taxpayer by an action in a civil court or whether such an order can be made by the High Court in the exercise of its jurisdiction conferred by Article 226 of the Constitution?
Whether the defence under the Limitation Act, 1963 could be raised in the given case?
Arguments of the parties
Contentions on behalf of the Appellants
The Appellants referred to Section 9 of the Code of Civil Procedure, which states that the court can try all the civil suits unless expressly barred by the law. This implies that the jurisdiction of the civil courts subsumes all the cases, except to the extent it is excluded by an express provision of law or by clear intendment.
Further, the appellants also contended that if it was a question of correctness of the imposition within the valid framework of the statute, rules, or notifications, then Section 17 of the Madhya Bharat Sales Act, 1950 might have operated. But it is not the same case when the imposition was under a void law. In case it was a void law, then the assessee was free to challenge the validity of the law in a civil suit along with a claim for a refund.
The main ground of contentions by the state was that such a suit was barred by the provisions of Section 17 of the Madhya Bharat Sales Act, 1950 which bars certain proceedings. It was also argued that as the appeals against the assessment were pending before the sales tax appeal judge, the plaintiffs were not entitled to file the suits.
It was further submitted that the taxes levied were in accordance with the provisions of Section 3 and Section 5 of the Madhya Bharat Sales Act, 1950.
Involved legal provisions
This case resolves several questions related to the jurisdiction of Civil Courts and taxing authorities. The following legal provisions are discussed in this case in detail: –
Provisions of Code of Civil Procedure, 1908
Section 9 of the Code of Civil Procedure, 1908
Section 9 of the code establishes the jurisdiction of Civil Courts in India. It states that the courts have jurisdiction to try all civil suits, except those that are expressly or impliedly barred. This jurisdiction is expansive, and the onus to prove the ouster of the jurisdiction is on the party that asserts it.
Recently, in the case of Sau Rajani vs. Sau Samita & Anr. (2022), the Apex Court observed that “even in cases where the jurisdiction of the civil court is barred by a statute, the test is to determine if the authority or tribunal constituted under the statute has the power to grant reliefs that the civil courts would normally grant in suits file before them.”
Section 80 of the Code of Civil Procedure, 1908
Section 80 of the Code states that no lawsuit can be filed against the government or a public official for any act that the public official is alleged to have done in their official capacity unless a notice for the same is not sent. This Section also states that a person can only sue after two months have passed since the notice was sent, making it mandatory to send a notice. It has been incorporated into the code to ensure speedy justice by saving valuable time and money for the plaintiff.
In the case of Ram Kumar and Anr, vs. State of Rajasthan and ors. (2001), the Apex Court explained the language of Section 80 as that a notice is to be given against not only the Government but also against the Public Officials in respect of any act purporting to be done in his official capacity.
Provisions of Madhya Bharat Sales Tax Act, 1950
Section 3 of the Madhya Bharat Sales Tax Act, 1950
Section 3 of the said Act is the charging Section. It provides for the levy of sales tax on sales and supplies of imported goods. The Act came into force on May 1, 1950. It consists of several sub-sections and speaks of the incidence of tax. This provision lay out tax on the dealer according to their taxable turnover and in the case of a dealer who imported goods into Madhya Bharat, the taxable turnover was Rs. 5000/-. This provision has been discussed in the case of Dhularam in detail.
Section 5 of the Madhya Bharat Sales Tax Act, 1950
Section 5 of the said Act lists articles on which sales tax is levied at a certain rate. The tax payable by a dealer under this Act shall be at a single point and shall not be less than Rs. 1-9-0 percent, or more than 6 ¼ percent of the taxable turnover as noticed from time to time by the government by publication in the official gazette. However, the government with respect to certain classes of goods charges tax up to 12 ½ percent on the taxable turnover.
The rate provision was made for rates with respect to importers, the point of time being the import.
Section 17 of the Madhya Bharat Sales Tax Act, 1950
Section 17 states that no assessment made and no order passed under the Act or the Rules made thereunder shall be called into question in any court.
Provisions of the Constitution of India
Article 301 of the Constitution of India
Article 301 of the Indian Constitution guarantees the freedom of trade, commerce, and intercourse throughout the country. It is given under Part XIII of the Constitution. Freedom under this Article does not mean absolute freedom but freedom from all those restrictions that are provided in other articles of Part XIII as well as regulatory and compensatory measures. Activities that are criminal or undesirable are not protected by this Article. However, this freedom is guaranteed in its widest amplitude to make sure that there is no unreasonable control, burden, or impediment in commercial intercourse.
Article 304(a) of the Constitution of India
Article 304(a) allows Indian states to impose taxes on goods imported from other states or union territories. However, the taxes must be the same as those imported on similar goods produced in the state.
Judgement of the case
While deciding these appeals, Justice Hidyatullah first discussed the jurisdictional issue of civil courts. It was observed that the jurisdiction of civil courts is all-embracing except to the extent it is excluded by an express provision of law or by clear intendment arising from such law. Several judicial precedents were discussed before coming to the conclusion of the case. In Secretary of State vs. Mask (1940), it was laid down by the judicial committee that the ouster of the jurisdiction of a civil court shall not be lightly inferred. It can only be established if there is an express provision of law or is implied in clear terms.
In, Raleigh Investment Co. vs. Governor General in Council (1947), it was held that when a statute creates a liability of paying tax, along with special and particular remedies against illegal exaction of such tax, then, remedies contemplated therein must be followed.It is not open for the assessee to pursue the ordinary procedure of civil courts.
Both these cases were decided on the basis of relevant provisions and the acts. The presence of a provision that barred the jurisdiction of the civil courts was the basis of these decisions. The existence of adequate machinery for granting relief was a supplementary reason.
Further, the court also discussed the case of M/S Kamla Mills Ltd vs. State of Bombay (1965) which was heard by a bench of seven judges. However, due to the open-ended decision of Kamla Mills, the case was not relied upon.
As a result of an extensive discussion in this case, Justice Hidyatullah laid down certain tests: –
When the legislation gives finality to the orders of the special tribunals, then in such cases civil court’s jurisdiction must be held to be excluded. But it could only be done if there is an adequate remedy to do what civil courts would generally do in such a suit.
Such provision, however, would not exclude those cases where the provisions of the particular Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
Where there is an express bar on the jurisdiction of the court, an examination of the scheme of the particular statute is necessary to find out the intendment. The result of such inquiry may be decisive.
When there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary, the result of the examination may be decisive.
It is also mandatory to see if the statute creates a special right or a liability and provides for the determination of the right or liability. Also, whether it further lays down that all questions about the said right and liability, shall be determined by the tribunals so constituted. Along with the issue of whether the remedies associated with such actions in civil courts are prescribed by the said statute or not.
When a challenge is to be made to the provisions of the concerned Act as being ultra vires, then it cannot be brought before the Tribunals constituted under that same Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for a refund if the claim is clearly within the time prescribed by the Limitation Act. However, it is not a compulsory remedy to replace a suit.
Where the particular statute does not contain any system for a refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.
A civil suit shall not lie if the orders of the authorities are declared to be final or when there is an express prohibition in the particular legislation. This is because questions of the correctness of the assessment apart from its constitutionality are for the authorities to decide.
Civil Court shall not be excluded by inference until the conditions stated above apply.
In light of the above-mentioned tests, the present facts were applied. Section 3 of the Act was the charging Section. It talks about the incidence of tax. It consisted of several subsections which laid the tax on the dealer according to their taxable turnover. In the case of a dealer who imported goods to Madhya Bharat, the taxable turnover was Rs. 5000/-. Section 4 further made certain exclusions and section 5 prescribed the rate of tax.
Therefore, while notifying the rate, the provisions were made for rates in respect of importers. As the import itself talks about the movement of goods, the matter shall fall within the ambit of Article 301. As trade and commerce were declared to be free throughout the territory of India, it became unfree because of the tax that was levied. Thus, due to unequal taxes on products, such notifications were struck down as discriminating and rendering trade and commerce unfree.
It was held that the Madhya Bharat Sales Act contained provisions for appeal, revision, rectification, and reference to the High Court. The notification being void meant that the party could take advantage of the fact that tax was levied without a complete charging section. This affected the jurisdiction of the tax authorities because they could not even proceed to assess the party. Therefore, relying on the judgement of K.S. Venkatraman & co. vs. State of Madras (1965), the appeals were allowed and suits were decreed, setting aside the judgement of the High Court.
On the issue of Limitation, the Hon’ble Court referred to the decision in the case of State of M.P. vs. Bhailal (1964). It was held that when a defence of limitation is to be raised or other issues of fact are to be tried, then the court should send the aggrieved party to seek the remedy by the ordinary mode of a civil suit. Therefore, in cases where the writ was asked for within three years, the court has upheld the order of refund by the High Court. However, in cases where the parties have approached the High Court after a lapse of 3 years, the order of refund was questioned and not approved observing that such relief can be sought in a civil court if not barred by limitation.
Jurisdiction of civil courts
Civil Courts are the bulwark of a democratic constitution. Section 9 of the Code of Civil Procedure grants the courts in India the jurisdiction to try all civil suits or civil matters unless their cognizance is either expressly or impliedly barred. The provision has an extremely wide ambit, and it does not explicitly mention the type of cases that fall within the jurisdiction of Civil Courts. Due to this, a lot of ambiguity and questions of jurisdiction arise from time to time.
In, Hriday Nath Roy vs. Akhil Chandra Roy (1928), Calcutta High Court tried to explain the meaning of the term Jurisdiction. The Court held that Jurisdiction is the power of the court to hear and determine a cause, adjudicate, and exercise judicial powers in relation to it.
In the case, of Shankar Narayan vs. K.. Sreedevi (1998), Apex Court had observed that the civil courts have primary jurisdiction in all types of civil matters as per the Code unless the action is expressly or impliedly barred. This judgement indicates that a civil court’s jurisdiction can be ousted by the legislature by adding a provision in the act itself.
In, M. Hariharasudhan vs. R. Karmegam (2019), the Supreme Court reiterated the principles laid down in Dhularam’s case and observed that “Exclusion of Jurisdiction of the Civil Court is not readily to be inferred.”
Critical analysis
The decision in the case of Dhulabhai and Ors. vs. State of Madhya Pradesh stands as a significant milestone in the realm of Indian Jurisprudence. This judgement is particularly preferred for its stand on Civil Court jurisdictions, constitutional freedoms, and taxation laws till today. However, the case also involves some complex interpretations of the statutory provisions which makes it a bit difficult to understand.
The judgement provided clarity on several ambiguities but also gave extensive reasoning and intricate legal analysis creating certain challenges in understanding the clear point of the court. One might say that the application of the precedent of this case in the future would take a lot of work due to its complexity. The court discussed a number of previous cases to decide this case, posing difficulty in understanding which case is relevant and which one is not.
In regard to the civil court’s jurisdiction, it is important that courts formulate certain guidelines to mitigate potential ambiguities from the law. The existence of special tribunals sometimes might create procedural ambiguities. Besides this, the nullification of tax impositions and recognition of refund claims may have serious implications on taxing authorities and revenue collection. However, the judgement emphasised the importance of filing a case within time limitations but has also accepted cases which are time bound. It depends upon the facts of each case. This recognition ensures procedural justice and fairness. The tests given by Justice Hidyatullah in this case has played pivotal role in shaping Indian legal jurisprudence.
Conclusion
In the landmark case of Dhulabhai, the Hon’ble Supreme Court delved into the questions concerning the jurisdiction of civil courts, taxation laws, and constitutional freedoms. The case revolved around the imposition of non-uniform taxes, challenging their legality under Article 301 of the Constitution of India. The court emphasised the expansive jurisdiction of the civil courts unless expressly excluded by law or clear intendment. It elucidated that exclusions must be carefully inferred, especially when statutory remedies are available. The judgement also highlights that where a statute provides finality to tribunal orders, civil court jurisdiction is excluded unless fundamental procedural principles are violated.
Further, the case also highlighted the challenges to some statutory provisions which are not within the tribunal’s purview but are open to civil courts. It also reaffirmed that suits for refund are maintainable where statutory remedies are absent or time limitations are not breached. This decision set a precedent for upholding civil court jurisdiction and safeguarding constitutional freedoms.
Frequently Asked Questions (FAQs)
What is the meaning of Ultra Vires?
Ultra Vires is a Latin phrase that means “beyond the powers”. It is used in law to denote that the concerned law is not within the powers of the concerned authority to make a law or that such law has exceeded what is allowed by law.
What is the freedom of trade and commerce?
Article 301 guarantees freedom of trade, commerce, and intercourse throughout the territory of India. However, this right does come with certain restrictions. If the trade is criminal or illegal, then government can impose restrictions and also punish those who go against the law.
What is the meaning of jurisdiction?
Jurisdiction is the power of the court to hear and determine a cause, adjudicate, and exercise judicial powers in relation to it.
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This article is written by Monesh Mehndiratta. The present article explains the concept of compulsory licensing, its use in the field of intellectual property rights, especially in patents and copyrights, the global perspective on compulsory licensing, the procedure for the grant of a compulsory licence under the Patents Act, 1970, and the Copyrights Act, 1957, the objective of compulsory licensing, its impact, and the first case where the licence was granted.
Table of Contents
Introduction
Can you imagine some other person using and manufacturing your product without your permission?
Do you think it is possible?
Well, yes, it is possible.
Even if your product is patented, another person can manufacture, use, and sell your product without your authorization. That can be done with the help of compulsory licensing. You would be familiar with the term ‘licence’ but must be wondering what is ‘compulsory licensing’? Has anyone ever been given such a licence? What is the use of a compulsory licence? All these questions must be bothering you. Well, do not worry, the present article will answer all your questions.
The present article deals with the concept of compulsory licensing, its meaning, the procedure for the grant of a licence under the Patents Act, 1970, the conditions to be fulfilled, the impact of compulsory licensing and the global perspective on the same. It further discusses the first case where a compulsory licence was granted in India. The article also explains provisions related to compulsory licensing in the Copyrights Act, 1957.
Meaning of compulsory licence
Compulsory licensing is a concept that enables a third party to manufacture a patented product in certain exceptional circumstances. However, only people who have been granted the compulsory licence by the controller, can do so. A compulsory licence is granted by the controller upon an application made by a person seeking the licence and upon satisfaction of certain conditions and reasons for the grant of the licence.
The concept has been introduced for the benefit of the public at large so that patented products can be made available to the public at affordable prices. We all know that intellectual property does not only consist of patents but also includes copyright, trademarks, trade secrets, etc. people might think that compulsory licences are only used in patents. However, this is not the case. The concept of compulsory licence is mainly concerned with patents, but its scope is not limited to just patents but extends to copyrights as well.
During the COVID-19 pandemic, the concept of compulsory licensing was the talk of the town. This was a period where people realised the importance of health and the need to regulate the patent system and impact of intellectual property rights. Even the world’s largest economies and developed countries faced the problem of unavailability of essential medicines. People could not afford the life-saving medicines due to high prices and costs of manufacturing. Underdeveloped companies with limited resources could neither manufacture the required medicines nor buy it due to financial burden. This is because pharmaceutical companies seek patent protection which gives them exclusive rights to manufacture, sell and distribute their products as a result of which a monopoly is created in the market leading to high costs of products. If a third person or manufacturer tries to manufacture the patented products, they can seek compensation and file a suit for injunction. This is where the concept of compulsory licensing comes into picture whereby a third party is granted a licence by the concerned authority, to manufacture, sell and distribute the patented product without permission of the patentee. This is the reason why the government and manufacturers relied on the option of compulsory licence during the health crises in the period of pandemic.
Origin of compulsory licensing
Compulsory licence can be understood as a licence granted by the government or an authorised agency in an intellectual property, particularly copyright or patents, to a third party without the consent of the owner or creator for better utilisation and affordability of such products. The history of compulsory licence can be traced back to the Statute of Monopolies, 1624 in the United Kingdom, which prevented monopolies in patents. The concept further gained popularity during anti-patent movements in the country. These movements aimed at reducing the impact of patents because of which people in need were not able to access and reap the benefits of patented products and inventions.
Also, the giant companies would seek the patent protection making it difficult for the small-scale industries and manufacturers to sustain in the market. The Patents Act, 1883 mentioned the concept in the form of rules to prevent the non-working of patents. The concept gained worldwide attention when it was mentioned in Article 5A of the Paris Convention enabling the member states to take legislative measures in order to grant compulsory licensing.
TRIPS and compulsory licensing
The concept of compulsory licensing is also mentioned in the Trade Related Intellectual Property Rights (TRIPS) Agreement under Article 31 wherein the member states were allowed to use the patented product or its subject matter without permission or authorisation from the patentee in exceptional circumstances. This use also includes the use of subject matter of a patent by the government or third parties. Later, the Doha Declaration reaffirmed the TRIPS Agreement and enabled the member states to determine grounds for the grant of compulsory licensing. After signing the TRIPS agreement, it became mandatory for the member countries to make provisions for compulsory licensing in their laws.
Under the scheme of compulsory licensing, all the members of the World Trade Organisation (WTO) can export medicines. The agreement and the annexures annexed therein also provide that the mechanism of compulsory licensing can be applied to pharmaceutical products like medicines, vaccines and diagnostics required in situations of epidemic or health crisis. It can be said that the TRIPS agreement has created a foundation or base for compulsory licence but the practical aspect is dependent on the members taking necessary steps to implement the concept with the help of laws and policies. India has already introduced provisions related to compulsory licensing in its IPR regime.
Licence under Patents Act, 1970
A licence can be understood as a permission given by the owner of a thing to a person to use, make, or exercise certain rights with respect to the subject matter. Thus, in patents, it means a permission to make, use, or exercise rights related to any invention that is patented. A licence only grants or permits partial use of a product or invention; however, the ownership remains with the patentee. It can either be exclusive or non-exclusive, which depends on the degree and extent of the right.
Types of licence
Licence can further be divided into two categories:
Voluntary licence
Compulsory licence
Voluntary licence
A voluntary licence is a written permission or authority given by the patentee or owner of the patented invention to any other person to make, use, sell, etc., the patented product in such a manner and on terms and conditions provided in the licence. This kind of licence is given by the owner or patentee directly. There is no role of the controller or government in granting the licence in any manner. Thus, it is known as a voluntary licence.
Compulsory licence
It is a licence through which a third person is authorised by the government or controller to make, sell or use a patented product or patented process. In simple terms, compulsory licences are authorisations given to a third-party by the government to make, use, or sell a particular product or use a particular process which has been patented without the need of the permission of the patent owner. The provisions regarding compulsory licences are given in the Indian Patents Act, 1970 and in the TRIPS Agreement at the international level. There are certain pre-requisite which need to be fulfilled if the government wants to grant a compulsory licence in favour of someone. A compulsory licence is granted by the Controller and is specifically dealt with under Chapter XVI, Section 84–94 of the Patents Act, 1970.
Purpose of granting compulsory licence
Section 89 provides that the purpose of granting a compulsory licence is:
To get the patented invention to work commercially in the country without any undue delay to the fullest extent to be called as a reasonable practice.
To prevent unfair prejudice with respect to the interests of any person who is working or developing an invention in India and is protected by a patent.
Compulsory licence under the Patents Act, 1970
Grounds for compulsory licence
Section 84 of the Act deals with compulsory licences. According to the Section, any person interested can make an application to the Controller for the grant of a compulsory licence after expiry of 3 years from the time when the patent was granted. Application for grant of compulsory licence can be made on the following grounds:
Requirements of the public are not satisfied with respect to patented inventions.
The patented invention is not available at affordable prices to the public.
The invention is not working in the country.
Any person can make an application under this Section, irrespective of the fact that he is a holder of a licence and alleges the above-mentioned grounds in the application. The application will also contain a statement stating the nature of interest of applicants and other particulars as prescribed. If the controller is satisfied with the above-mentioned grounds, he/she may grant a licence with the necessary terms. While considering the application, the controller must consider (Section 84(6)):
Nature of invention, time elapsed since the sealing of patent, and measures taken by patentee or licensee to use the invention.
Ability of the applicant to use an invention for the benefit of the public.
Capacity to undertake risk if the application is granted.
Efforts made by the applicant to obtain a licence from the patentee and such efforts have been successful.
Section 84(7) provides that reasonable requirements of the public will not be considered as satisfied if:
Due to the refusal to grant a licence by patentee –
A trade or industry already existing or the establishment of new trade or industry in India is prejudiced.
There is not much demand for the patented product.
There is prejudice with respect to the establishment or development of commercial activities in the country.
There is no supply or development of the market for the export of patented products.
There is prejudice with respect to the use of patented products or processes, the manufacture, use, or sale of materials that are not protected, or the establishment of any trade or industry due to conditions imposed by the patentee on the grant of a licence.
The patentee imposed a condition to provide an exclusive grant back and to prevent challenges to the validity of the patent or licensing of coercive packaging.
The invention is not commercially used in India to an adequate extent or fullest extent, which can be considered as a reasonable practice.
The commercial use of patented invention is prevented or obstructed by importation of the patented product from any foreign country by:
Patentee or any person claiming under him.
Persons who are purchasing the product from the patentee directly or indirectly.
Any other person against whom no proceedings for infringement have been initiated by the patentee.
Procedure for the grant of compulsory licence
Section 87 of the Act provides the procedure for the grant of compulsory licences. The licence is granted by the controller under the Act. The section provides that when an application for compulsory licensing is made and the controller is satisfied with the grounds, the applicant will be asked to serve a notice to the patentee or any other person interested in the patent. The application will then be published in the official journal.
In case of any objection, the patentee or any other interested person may give the notice of such opposition or objection to the controller within the time prescribed by the controller. The notice of opposition must contain the grounds of objection with respect to the application made by the applicant for grant of a compulsory licence. The controller is under an obligation to notify the applicant about such opposition and is given an opportunity to be heard by both the parties i.e., the applicant and the opponent, before deciding the application.
Revocation of patents
Section 85 of the Act deals with the revocation of patents by the controller due to non-working. Any person interested orthe central government makes an application to the controller to revoke the patent, after the expiration of 2 years from the date when the first compulsory licence was granted, on the following grounds:
The patented invention is not worked on or used in the country.
Requirements of the public are not satisfied with respect to the patented invention.
It is not available to the public at a reasonable and affordable price.
The application must also contain other particulars as prescribed and the nature of interest of applicants if made by any person other than the Central Government. If the controller is satisfied with the above-mentioned grounds, he may grant the order to revoke the patent. The section also provides that every application made in this regard must be decided within one year from the date when it is presented before the Controller.
Termination of compulsory licences
Section 94 of the Act deals with termination of compulsory licences, which can be done on an application made in this regard and upon the satisfaction of the controller that the circumstances giving rise to a compulsory licence do not exist any more. The Section provides that such an application for termination can be made by:
The patentee or
Any person deriving title or interest in the patent for which compulsory licence was granted.
However, if such an application is made by any other person, an objection can be raised by the holder of the licence. While granting the application, the controller has to consider whether the interest of the person having the licence is affected or not.
Powers of controller
Section 88 of the Act deals with the powers of the controller to grant compulsory licences. It provides that the controller can:
Order the grant of licences to the customers of the applicant where an application has been made stating that there is prejudice regarding manufacture, use, or sale of materials that are not protected by patent due to conditions imposed by the patentee or upon purchase, hire, or use of such a product or process.
Order to amend the existing licence where an application is made by a person holding a licence under the patent.
If more than two patents are held by the same patentee and an applicant making an application for compulsory licence establishes that the requirements of the public that are reasonable have not been satisfied, the controller may direct to grant the licence of other patents if he is satisfied that –
The applicant cannot work efficiently without infringement of any other patent and
The patents involve technical advancements that are important or
Economic significance with respect to other patents.
The section also provides that a licensee can make an application to the controller to revise terms and conditions on the ground that the settled terms and conditions have proved to be onerous and that the licensee is not able to work the invention and is suffering a loss. This application is made after the licensee has worked or commercially used the invention for not less than 12 months.
Section 86 of the Act provides the power of Controller to adjourn the hearing of applications for a period not exceeding 12 months in cases where the application states that:
The invention patented has not been worked on in India,
Controller is satisfied that the time has elapsed since the patent was sealed for any reason due to which the invention was not worked on a commercial scale to such an extent which can be called a reasonable practice.
However, if it is established by the patentee that the invention was not worked on due to any state or central act, rule or regulations made by the government, the period of adjournment will be reckoned in this case from the date during which the working of the invention was prevented.
Terms and conditions of compulsory licences
Section 90 of the Act deals with the terms and conditions of compulsory licences and provides that while settling the terms and conditions, the controller must try to secure:
Reasonable royalty and remuneration are reserved for the patentee or any other reasonable beneficiary of the patent with respect to the nature of the invention, and expenditure incurred by the patentee in developing and obtaining the patent.
Working on patented inventions to the fullest extent, along with profit.
Availability of patented products to the public at affordable costs.
Grant of non-exclusive licence.
Non-assignable right of the licensee.
Grant of licence for a balance term unless a shorter term is consistent with the interests of the public.
Licence is granted mainly to supply in the Indian market.
The purpose of granting a licence in case of semiconductor technology is to work/use the invention for non-commercial use by the public.
A permit for exportation of patented products under the licence is granted in order to remedy an anti-competitive practice.
The Section also provides that no licence would authorise the licensee to import any patented article or product made by a patented process from a foreign country where it would result in infringement of patentee’s rights.
Compulsory licence for export of patented pharmaceutical products
Section 92 of the Act provides special provisions for compulsory licences as notified by the Central Government. It provides that the Central Government can make a declaration through a notification regarding the grant of a compulsory licence for any patent in cases of:
National emergency,
Extreme urgency,
Non-commercial use by the public.
The Controller will grant the licence to the application upon an application made by him and also settle terms and conditions. While doing so, the Controller will have to make sure that the patented product is available to the public at the lowest prices and also that the patentees are able to take reasonable advantage of their rights. However, the Controller will not apply the procedure given under Section 87 of the Act, in cases where a national emergency or extreme urgency, or non-commercial use by the public arises. This also includes crises related to public health, such as AIDS, HIV, tuberculosis, malaria or other epidemics.
Section 92A further deals with the compulsory licence for the export of pharmaceutical products that are patented. It provides that in order to address problems of public health in countries where there is no manufacturing capacity or insufficient manufacturing capacity of pharmaceutical products, a compulsory licence will be available for the export and manufacture of such products to such countries and will be granted by the controller upon an application made in this regard. The pharmaceutical products in this situation include any patented product or products manufactured by a patented process required to address the public health crisis.
Compulsory licence under the Copyrights Act, 1957
Chapter VI, Section 31-31B of the Copyrights Act, 1957 deals with compulsory licences. Section 31 provides that a compulsory licence can be granted by the Registrar of Copyrights under the directions of the commercial court, if there is a complaint regarding any work which is published or performed in public, during the term of the copyright, stating that:
The owner refused to republish the work or allow the same, or refused to allow the performance of such work in public because of which it was withheld from the public.
The owner refused to broadcast the work or communicate it to the public.
The commercial court, upon satisfaction that there is no reasonable cause for such refusal, can direct the Registrar of Copyrights to grant the licence to the complainant after giving an opportunity to be heard to the owner of the copyright. The licence will allow the complainant to:
Republish the work,
Perform the work in public,
Communicate the work by broadcasting it.
However, the owner must be given compensation for the same, and the complainant has to abide by the terms and conditions imposed by the registrar in order to exercise the rights mentioned above.
It is interesting to note the term ‘commercial court’ in the above section has been inserted recently. The Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 which came into force on 5 April, 2021 abolished various tribunals under different statutes including Intellectual Property Appellate Board (IPAB) as a result of which an amendment was done in the Copyrights Act, 1957 to omit the term ‘Appellate board’ and to insert the term ‘commercial court’.
Section 31A further deals with compulsory licences in cases of unpublished or published work. If the author of any unpublished work or published work, or work withheld from the public in India, is dead or unknown, or cannot be found along with the owner, any person can apply for a grant of licence to the Commercial Court to publish or communicate such work. However, before making any such application, the applicant is supposed to publish the proposal in one issue of a daily newspaper circulated in major parts of the country in English language. If the work includes translation, then in the daily newspaper of that language.
The application must be accompanied by the advertisement and the prescribed fee. The commercial court, after an inquiry, will direct the registrar of copyrights to grant a licence. After doing so, the registrar will ask the applicant to deposit the royalty, which is determined by the Commercial Court in the public account or any other account specified by the court. The Section further provides that if the original author of the work is dead, the Central Government may ask the heirs, executors, or legal representatives of the author to publish the work within a given time period, if it is beneficial for the national interest. If the work is not published within the prescribed time limit, the central government may permit any person to publish the work upon application made by the person in this regard. This will be done after giving the parties an opportunity to be heard and upon payment of royalty by the applicant.
Section 31B further provides provision for the grant of compulsory licences for the benefit of disabled persons. A person working for the benefit of any person with a disability in a business or for profit may apply for a compulsory licence to the Commercial Court. Such an application will be disposed of by the court within 2 months from the date when such application was made. While doing so, the court will inquire or direct an inquiry in order to establish the credentials of the applicant to satisfy itself as to whether the application was made in good faith or not. The Court will direct the Registrar to grant a licence to the applicant in order to make the work available to persons with disabilities. The Court can also extend the period of compulsory licence. All the compulsory licences issued under this Section will specifically provide:
Means of publication,
Format of publication,
Period or time limit to exercise the licence,
Number of copies to be issued,
Rate or royalty.
Impact of compulsory licence
A compulsory licence has the following effects:
Innovation
Underdeveloped countries mostly prefer getting the compulsory licence for a generic drug rather than funding the research & development separately, which is often a very costly thing. Moreover, research-based pharmaceutical companies do not launch patent modules in the developing countries as there is always the risk of losing the patent, and losing money in research. However, with the introduction of compulsory licence, the scope of innovation has increased. The developing countries and underdeveloped countries have realised the importance of innovation and are striving to achieve it in order to sustain in the market which is also beneficial for their economy.
Competition and cost
Compulsory licensing will increase the number of companies producing generic medicines. Hence, there will be an increase in the supply leading to lower product cost. This will also force the innovator countries to introduce differential pricing for their patent modules so that they can stand on the market. However, it will increase the competition among the suppliers and manufacturers.
Access to patented invention
With the help of a compulsory licence, a patented invention can be accessed easily without the consent of the patentee or the owner of the invention. This further results in the availability of patented processes and products to a larger public.
Transfer of technology or patented product
The compulsory licensing has enabled the transfer of a patented product to any foreign country having no resources or capacity to manufacture the said product. For example, Section 92A of the Patents Act, 1970 provides for the export of patented pharmaceutical products to countries which are in need and have no capacity to manufacture the product.
Public interest
The concept of compulsory licensing works in favour of public interest and enables a patented product to be available at an affordable price to the public. It also helps in balancing intellectual property rights and public interest like public health, development, etc. This also leads to controversy between the exclusive rights of patentees over intellectual property and promoting access to patented products.
First case of compulsory licensing in India
India granted its first ever compulsory licence during the dispute between Bayer Corporation and NATCO Pharma Ltd., in 2012 to an Indian Company named Natco Pharma. Let us try to understand this case.
NATCO-BAYER Case
India granted its first ever compulsory licence during the dispute between Bayer Corporation and NATCO Pharma Ltd., in 2012 to an Indian company named Natco Pharma. In this case, Bayer Corporation, a German pharmaceutical company, invented a drug named ‘Nexavar’ for the treatment of kidney cancer. This drug was granted patent protection in India in 2008. Thereafter, an Indian pharmaceutical company approached Bayer Corporation with an aim to seek a voluntary licence to manufacture the drug in 2010. However, their request was denied due to which they applied to the Controller for a grant of compulsory licence. The licence was granted in 2012, aggrieved by which the Bayer Corporation approached the Intellectual Property Appellate Board (IPAB). The decision of the board was similar to that of the Controller. The board also opined that since the patentee is enjoying the rights conferred upon it, the patentee must also ensure that the drug is available to the public at large. Further, in this case, all the three conditions mentioned in Section 84 were fulfilled.
This medicine is used for treating liver and kidney cancer, and one month’s worth of dosage costs around Rs 2.8 Lakh. Natco Pharma offered to sell it for around Rs 9000, making this potentially life-saving drug easily accessible to all parts of society and not just the rich people. This decision benefited the general public at large. However, it was criticised by the pharmaceutical companies, as they felt the licence should not have been given due to fear of losing their rights over their patented products and inventions.
However, Natco Pharma is paying the royalties to Bayer at a rate of 6% of all sales on a quarterly basis in accordance with the guidelines set by the United Nations Development Programme (UNDP). In January 2013, the Health Ministry of India recommended three anti-cancer drugs trastuzumab, ixabepilone, and dasatinib for compulsory licences. This will allow the Government to sell these drugs at a significantly lower price and will also allow the people who cannot afford the drugs originally, access to these drugs.
Lee Pharma v. Astrazeneca (2015)
The Lee Pharma v. Astrazeneca (2015), is another case where a compulsory licence was sought wherein, an Indian Pharmaceutical manufacturer sought compulsory licence for a drug named ‘sexagliptin’ that is used for the treatment of type-II diabetics. It is amongst the very few medicines available for the treatment of type-II diabetics in the country. The drug was first given to Bristol Myers Squibb and later to Astrazeneca, an Anglo Swedish Company. However, the application for the grant of compulsory licence was rejected on the ground that the conditions or reasons mentioned in Section 84 of the Act were not fulfilled.
Compulsory licence in different countries
The concept of compulsory licence is not limited to India, but has worldwide application, from underdeveloped countries to developing and developed countries. Let us try to understand the provisions of compulsory licensing and its related provisions in major developed countries like the UK and the US.
Compulsory licence in the United Kingdom
As stated above, the origin of compulsory licensing lies in the United Kingdom, as stated in the Statute of Monopolies of 1623. Currently, the Patents Act of 1977 deals with compulsory licences in the United Kingdom. It provides that an application to obtain a compulsory licence can be made after 3 years from the grant of the patent on the condition that the demand for such a patented product:
Cannot be met on terms that are reasonable.
The refusal is prejudicial to the development or establishment of commercial activities.
The Act also provides for dependent patents. It provides that if in case there is any technical advancement in a patented product or invention which is considered important for economic significance, but the usage is obstructed by the previous patentee, then the owner of the patent which is dependent on previous patents i.e., dependent patent, can seek compulsory licence on such a patent. The original patentee, on the other hand, will be given cross-licence on the subject matter.
Compulsory licence in the USA
The US laws do not provide any specific provision for compulsory licensing. However, in cases of medical emergencies and to enable the public to reap the benefits of pharmaceutical products, the government has devised certain remedies. The Bayh-Dole Act, 1980 gives rights to the government in the US to have a non-transferable, non-exclusive, irrevocable paid-up licence to practise any invention throughout the world in order to promote and utilise technology funded by the government according to the 35 US Code, Section 202(c)(4). It also provides that an owner of an invention made with the help of government funds, may licence the same to any third party for the sake of health and safety as given under 35 US Code, Section 203(a).
The government also has a right to use or manufacture patented products without the permission of the owner or patentee, as given under 28 US Code, Section 1498. However, the patentee can ask for compensation for the use and manufacturing of a patented product or invention. Thus, the US does neither expressly recognise the concept of compulsory licensing nor provides any specific provision for the same. However, policies and laws have been made to regulate the prices of patented products, especially products related to the pharmaceutical industry.
Compulsory licence in India
In earlier times, inventions and their techniques were kept secret due to apprehension of theft. The inventors had no remedies in case their inventions were stolen or exploited. Thus, there was a need to protect the rights of inventors and their inventions. The protection for inventions i.e., the patent system in India emerged during the British rule and the first legislation in this regard was based on the British Patent Law of 1852, which was modified and amended in 1859. Thereafter, the Patent and Designs Act, 1911 was enacted and used until the 1970 Act was passed. However, the concept of a compulsory licence was not introduced until then.
A committee headed by Justice N. Rajagopala Ayyangar was appointed by the government in 1957, to examine the existing law on patents in India and recommend necessary changes and suggestions. A report was submitted in 1959, based on which a bill was introduced in 1965. Finally, the Patents Act, 1970 was enacted and passed by both houses on 19th September, 1970, but did not have any provisions related to a compulsory licence. The Act was later amended in 1999 after the establishment of the World Trade Organisation in 1995 by the Patent (Amendment) Act, 1999. The Patent (Amendment) Act, 2002 provided a uniform term of 20 years for patent protection. Other significant changes were made to the Act in 2005 in order to comply with the TRIPS agreement, and finally, specific provisions related to grant, revocation and termination of the compulsory licence were added under Chapter XVI of the Act. The concept of compulsory licence, however, is not limited to patents in India but extends to copyrights as well. The Copyright Act, 1957 also contains provisions related to compulsory licensing for the copyrighted works under Chapter VI of the Act.
Different views on compulsory licensing
The introduction and implementation of provisions related to compulsory licensing is a noble step taken for the benefit of the public at large. With this, the patented products can be easily made available to the public at cheap and affordable prices so that they can reap the benefits of such inventions and products. However, there are different views with respect to the concept and implementation of provisions for the grant of compulsory licensing.
Under-developed and developing nations find it a beneficial measure due to the unavailability and higher costs of patented products and the limited resources and capability to manufacture and produce such products. With the help of compulsory licensing, patented products can be easily imported and exported, manufactured by any third party who has been granted the licence, making such products easily available to the public at large at affordable prices.
The developed countries, on the other hand, criticise the concept of compulsory licensing as it limits the patentees and owners of patented products and inventions from exercising and enjoying their exclusive rights. For them, a compulsory licence is a threat to their exclusive rights to their patented products, because of which people hesitate and are reluctant towards innovating new products and inventions.
Thus, this phenomenon of compulsory licensing is a highly debatable issue. Many developing countries are giving importance to compulsory licensing because of the unavailability and unaffordability of the medicines, and they are continuously granting more and more compulsory licences. The developed countries of Europe, the USA are opposing this view, as it would make innovation difficult for pharmaceutical companies.
Conclusion
Compulsory licence was introduced with an aim to provide certain benefits to the public at large and controlling the monopolistic rights enjoyed by the patentees and owners of the patented inventions and products. This is because, due to their monopolistic control over the patented product, the public was not able to take advantage of such a product. Even though patentees had a duty to make the patented product available to the public at affordable prices, the products were not easily available. This caused serious problems, especially in cases of pharmaceutical drugs and products necessary for the treatment of diseases. Thus, the government felt a need to introduce a mechanism to prevent such incidents and came up with the concept of a compulsory licence that enables a third party to use, sell, or manufacture patented products without the consent or permission of the patentee upon the grant of a licence. However, certain conditions must be fulfilled for the grant of a licence.
The importance of a compulsory licence can also be understood in light of COVID-19 pandemic. The deadly coronavirus had no remedy or vaccination, because of which thousands of people died, and there was constant fear around the globe. Every country tried to find the vaccination for the same. When the vaccination was found, another challenge was its mass production at the same time so that the public at large could be benefited. One who invented the drug or vaccination would surely apply to seek the protection of a patent. In this situation, a compulsory licence is a possible solution, enabling the licensed manufacturers to produce the drug/vaccine doses in large quantities. Thus, compulsory licensing is the future, and the best possible solution is such circumstances.
Frequently Asked Questions (FAQs)
Does compulsory licensing grant exclusive rights to a patented product?
No, compulsory licensing grants non-exclusive rights to a third party to use, manufacture, or sell a patented product. The exclusive rights remain with the patent holder or the owner of the patented product.
Does granting a compulsory licence require the consent of the patentee?
No, a compulsory licence is granted by a competent authority, i.e., the Controller and does not require any consent or permission from the patentee.
Can a compulsory licence be granted for a copyright?
Yes, Section 31-31B of the Copyrights Act, 1957, deals with compulsory licence in the case of copyrighted works. These provide for:
Section 31 provides for compulsory licence in cases of work withheld from the public.
Section 31A deals with the grant of compulsory licences in cases of published and unpublished works.
Section 31B deals with compulsory licences granted for the benefit of disabled persons.
Can a compulsory licence be granted for trademarks?
No, there is no provision for the grant of compulsory licences in the case of trademarks.
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This article was written by Dhruv Vatsyayan and further updated by Rachna Kumari. This article provides an in-depth analysis of the relationship between constitutional and procedural laws with respect to the right against self-incrimination and other related laws enshrined under the Constitution, Bharatiya Nagarik Suraksha Sanhita, 2023 and international laws.
Table of Contents
Introduction
In a democratic society, rights are the cornerstone of individual freedom and serve as a bedrock upon which a just and fair nation is built. Fundamental rights empower citizens to express themselves freely, participate in building the nation and hold the government accountable in case of violation of rights.
India, being the world’s largest democracy, enshrines a comprehensive set of rights in the Constitution, guaranteeing fundamental rights to all citizens. These fundamental rights are enshrined in Part III of the Indian Constitution. Some of these rights include the right to equality, the right to protection in respect of conviction for offences, the right to life, the right to freedom of expression, etc.
Every day, we encounter numerous news reports regarding persons being accused of some offences. Any inquisitive legal enthusiast ponders over the question of whether there exists a fundamental right or protection for the accused. Hence, to address the same, Article 20 was included in Part III of the Constitution of India.
If we analyse all the clauses of Article 20 of the Indian Constitution, we will come across this interesting inference that Clauses (1), (2) and (3) of Article 20 reflect the protection of accused and convicted persons from the excess of Legislation, Judiciary and Executive actions respectively. Also, these protections are available to all the people i.e., Indians as well as foreigners and, thus, form the bedrock of the Indian Constitution and guarantee basic human rights to the convicted and accused people. Its availability, even during an emergency is being imposed under Article 352 of the Indian Constitution is what makes it unique and so important for the discharge of democratic values.
Over time, the history and evolution of the rights of convicts have undergone significant changes, reflecting the change in societal attitudes, legal frameworks and concepts of justice. Ancient civilisations such as Egypt, Mesopotamia, Rome, and Ancient India were governed by the laws and rules made by the kings. These rules did not acknowledge the rights of the common people. Hence, it was at the discretion of the king and other authorities to decide the offence and punishment.
Globally, the Magna Carta, signed in 1215, is widely regarded as a historic moment in the evolution of citizen rights and the rule of law. This pivotal document signed between King John of England and his barons, established fundamental principles that limited the power of the monarchy and granted certain rights to the people. It introduced the concept of due process, ensuring that individuals could not be arbitrarily deprived of their life, liberty and property. It also established the principle of the right to a fair trial by jury and protection against unlawful imprisonment. Magna Carta gave effect to the acknowledgement of the rights of individuals in other jurisdictions as well. Subsequently, a lot of changes were made as the world started to realise the importance of human rights.
Before independence, Indians were deprived of their rights, first by invaders and then by Britishers. The British government was focused on exploiting India economically. Hence, it did not grant even basic rights to Indians and oppressed them in various ways. The British government did not provide rights to protection in respect of conviction to leaders such as Mahatma Gandhi, Jawaharlal Nehru, Bal Gangadhar Tilak, Sardar Patel, etc. During British rule, the citizens were arrested arbitrarily.
After India gained independence, the Constitution makers ensured that the basic rights of individuals were not taken away by the government. Hence, fundamental rights were enshrined in the Constitution to ensure that every citizen can live in peace and harmony, regardless of their race, sex, caste, or religion. Article 20, which deals with protection in respect of conviction for offences, safeguards the rights of persons who are accused of committing an offence.
Article 20 of the Indian Constitution : Protection of accused with respect to conviction
Article 20 of the Indian Constitution consists of 3 clauses. These three clauses deal with the arbitrary actions by the Legislature, Executive and implementing authorities. The three clauses are as follows:
Article 20(1) mandates that no person can be convicted for an act that was not considered an offence at the time of its commission. It prohibits retrospective application of criminal laws and safeguards individuals from arbitrary actions of the State.
Article 20(2) protects individuals from being prosecuted and punished multiple times for the same offence. It is also known as protection against double jeopardy. It guarantees that a person cannot be penalised twice for the same offence.
Article 20(3) provides for protection against self-incrimination. It states that no person who is accused of an offence can be compelled to be a witness against themselves. This clause safeguards the interests of the accused and ensures that individuals are not forced to testify against their own interests during the trial.
Importance of Article 20 of the Indian Constitution
Articles 20 and 21 are the only articles of the Constitution of India that cannot be suspended even during an emergency because they provide essential protection to individuals that are considered fundamental and unalienable rights. Article 20 safeguards protection in respect of conviction for offences and Article 21 protects the right to life and liberty of an individual. These rights are considered inherent human rights and not merely those guaranteed by the Constitution.
The unlawful arrests of leaders of opposition parties during an emergency from June 25, 1975, to March 21, 1977, gave rise to the case of ADM Jabalpur v. Shivkant Shukla (1976), also known as the “habeas corpus case”, where the Supreme Court held that a person’s right to not to be unlawfully detained could be suspended during an emergency. This case sparked a debate regarding the precedence of the Constitution over individual liberty and protection from the State’s arbitrary detention. When the Janata government came into power, it introduced the Constitutional (Forty-fourth Amendment) Act, 1978 which limited the power of government under Article 359 which empowers the President to suspend the enforcement of rights guaranteed under Part III of the Constitution. Hence, all fundamental rights can be suspended during an emergency except those provided under Articles 20 and 21.
Besides this, it is a known fact that the state, government, and its various law enforcement agencies hold significant authority and power over the citizens. When a person is accused of an offence, he often finds himself in a position of vulnerability, facing the might of the authorities and the rigours of the judicial process. In such a scenario, it is highly probable that the accused may be subjected to abuse of power, coercion, and unfair treatment by such government agencies. The same has been seen in various cases of custodial deaths such as Smt. Nilabati Behera alias Lalit Behera v. State of Orissa & Ors. (1993), Prithipal Singh v. State of Punjab & Anr. (2011), Re-Inhuman Conditions In 1382 Prisons v. State of Assam (2017). To minimise these risks and uphold the principles of natural justice and other legal principles such as following due process, procedure established by law, presumption of innocence, etc., a few basic rights were conferred on the accused persons in the constitutional provisions itself. These rights serve as a shield against potential abuse of power by government authorities. Additionally, even the Hon’ble Supreme Court has established guidelines to protect the rights and dignity of people in police custody, in the case of D.K. Basu v. State of West Bengal (1996).
Provision against ex post facto law: Clause (1) of Article 20 of the Indian Constitution
Article 20(1) of the Constitution guarantees a right similar to the provisions prohibiting ex post facto laws in the American Constitution which stipulates that no laws criminalising the lawful conduct of a person shall be enacted retrospectively. Basically, ex post facto laws are those laws which penalise individuals for acts that were lawful when committed but subsequently declared unlawful by a law enacted later on. Thus, legal actions done in the past cannot be retrospectively criminalised by a subsequent law; rather, new laws can only be applied prospectively.
Article 20(1) states that an individual cannot be prosecuted and convicted under those laws that were not in existence at the time the offence was committed, nor can he be given a punishment greater than that existed at the time of the commission of an offence.
The legislature has the power to make both prospective and retrospective laws for the welfare of the State. However, Article 20(1) brings a clampdown to the legislative prerogative of the legislation by prohibiting retrospective implementation of a criminal law.
Article 20(1) is the provision against the ex post facto laws. An ex-post facto law is one which imposes punishments retrospectively, i.e. upon acts already done, or which increases the penalty for the past acts. Suppose a person does an act which is lawful or is not declared an offence in 2022. A law was passed in 2024 making that act a criminal offence and seeks to punish that person for what he did in 2022. Or, suppose the punishment prescribed for an offence is increased from seven years imprisonment to life imprisonment. These are examples of ex-post-facto laws which are regarded as inequitable and against the interests of justice.
In the case of Rao Shiva Bahadur Singh v. State of Vindhya Pradesh (1955), Justice Jagannathadas stated that “There can be no doubt as to the paramount importance of the principle that such ex post facto laws which retrospectively create offences and punish them are bad as being highly inequitable and unjust.”
Article 20(1) is divided into two parts:
The first part protects an individual from being convicted for an act that was not considered an offence by any law in force when it was committed.
The second part ensures that no excessive punishment is given beyond what was prescribed in the law concerned at the time of the commission of the offence.
For an individual to seek protection under Article 20(1), the following conditions must be fulfilled:
He/she must be accused of an offence;
The accused must not have committed an act that violated a law that was in force at the time of the commission of the act. This ensures that the accused is not punished for an act that was lawful at the time it was committed; and
The penalty must not be greater than that which might have been inflicted under the law in force at the time of the commission of the offence. However, the accused can benefit from reduced punishment if the punishment for a crime is reduced during the trial period.
Part I of Article 20(1) of the Indian Constitution
The first part of Article 20(1) says that no individual shall be convicted of an offence except for the violation of a ‘law in force’ during the commission of the act. A person is not liable for doing an act which was not declared as an offence before the enactment of a new law made in future which makes that act an offence. In essence, if an act is not an offence on the date of its commission, as per the then-existing laws in force, a law enacted in future cannot punish a person retrospectively. It is noteworthy that Article 20 relates to the constitutional protection given to persons who are charged with a criminal offence because of an ex post facto law. The immunity extends only against punishment by courts for a criminal offence under an ex-post facto law. In the case of Pralhad Krishna Kurane v. The State of Bombay (1951), it was held that immunity under Article 20(1) cannot be claimed against preventive detention for acts done before the relevant law is passed.
Exceptions to the scope of Article 20(1) of the Indian Constitution
Article 20(1) does not restrict a civil liability being imposed retrospectively. In the case of Hatisingh Manufacturing Co. Ltd. v. Union of India (1960), an Act was passed in June 1957, and it mandated those employers who shut down their businesses to compensate their employees starting from November 28, 1956. If the employers failed to comply, they could be imprisoned. The Supreme Court held that the liability imposed by the law was a civil liability, which was not a criminal offence. Therefore, Article 20(1) could not be applied. Likewise, in the case of M.P.V. Sundararamier & Co. v. The State of Andhra Pradesh (1958), it was held that a tax can be imposed retrospectively. Imposing or increasing a penalty with retrospective effect for violation of tax law does not violate Article 20(1). This is because tax is a civil liability and tax laws deal with the collection of revenue, which is a vital function of the State. Retrospective application of taxing statutes helps the government to rectify past tax policy deviations or to address specific loopholes that the taxpayer may have exploited. In the case of Shiv Dutt Rai Fateh Chand v. Union of India (1983), the Hon’ble Supreme Court held that Article 20 does not apply to proceedings under a sales tax law which have a civil sanction and are of a revenue nature. The Court further held that a penalty imposed by departmental authorities for violation of statutory provisions is only a civil liability. Further, in the case of Y. Panduranga Swamy v. The State Of Andhra Pradesh And Anr. (1971), the petitioner was accused of misconduct within the meaning of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Act, 1960 and the Andhra High Court held that Article 20(1) does not apply to disciplinary proceedings and the petitioner can be held guilty.
Scope of Article 20(1) for procedural changes
Only a conviction or sentence is prohibited under Article 20(1) but not trial, under an ex-post facto law. In the case of Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh(1953), it was held that a change in the procedure of the court cannot ipso facto be held unconstitutional. When an individual is accused of committing an offence, he does not have a fundamental right to be tried in a specific court or through a particular procedure unless there’s a constitutional objection like discrimination or violation of other fundamental rights. A law which changes the venue of trial of an offence from a criminal court to an administrative tribunal is not violative under Article 20(1).
In the case of Mohan Lal v. State of Rajasthan (2015), which involved the Narcotics, Drugs and Psychotropic Substances Act, 1985, the Court held that only conviction and punishments under an ex post facto law are prohibited under Article 20, but the trial or prosecution itself is not. A trial under a different procedure than what existed during the commission of the act does not come under the ambit of the same and cannot be struck down as unconstitutional. In the case of Sajjan Singh v. State of Punjab (1964), Sajjan Singh was found guilty of misconduct in his official duties according to Section 5(2) of the Prevention of Corruption Act, 1947. Section 5(2) creates a presumption that a government servant is guilty of misconduct if he possesses assets disproportionate to their known income unless proven otherwise. It was argued that the presumption of misconduct under Section 5(3) of the Act is violative of Article 20(1) of the Constitution. The Court held that the presumption was merely a rule of evidence and not a substantive provision creating a new offence. The Court further held that the presumption did not impose a penalty greater than what might have been inflicted under the law in force at the time of the commission of the offence. Therefore, the presumption of misconduct under Section 5(3) of the Act was a valid exercise of the power of the legislature to define and punish offences.
Part II of Article 20(1) of the Indian Constitution
Under the second part of Article 20(1), a person cannot be given a greater penalty than what he might have incurred at the time of committing the offence. The scope of Article 20(1) has been discussed by the Supreme Court in the case of K. Satwant Singh v. State of Punjab (1960). According to Section 420 of the Indian Penal Code,1860, an unlimited fine could be imposed for the offence of cheating. In 1943, an ordinance was issued that required a minimum fine to be mandatorily imposed on a person convicted under Section 420. The Hon’ble Supreme Court held that Article 20(1) was not infringed under the ordinance because the minimum penalty prescribed by it could not be said to be greater than what could have been inflicted on Satwant under Section 420 at the time he committed the offence. In essence, the key consideration under Article 20(1) is whether a retrospective law imposes a penalty greater than what could have been imposed under the law at the time of the offence. In the case of Satwant Singh, the total fine, both “ordinary” and “compulsory”, was not considered greater than what could have been imposed under Section 420 of IPC as it allowed for an unlimited fine to be imposed on the convict.
Beneficial construction in favour of accused persons
An ex post facto law that is beneficial to the accused is not prohibited by Article 20(1). The accused can take advantage of the beneficial provision of the ex post facto law. The rule of beneficial construction necessitates that ex post facto law should be applied to lessen the punishment of the previous law on the same subject. Such legislation is not affected by Article 20(1) and can be applied retroactively. This principle is based on sound reason, common sense and favouring the accused.
In the case of Rattan Lal v. State of Punjab (1964), the accused was a sixteen-year-old boy. He was found guilty of committing house trespass and attempting to outrage the modesty of a seven-year-old girl. The Magistrate sentenced him to six months of rigorous imprisonment and also imposed a fine. The accused appealed to the Additional Sessions Judge and then to the Hon’ble High Court through a revision petition but did not take the plea that he may be given benefit under the Probation of Offenders Act, 1958, which came into force after the Magistrate’s judgement. The Act aimed at reforming the field of penology and stipulated that individuals under 21 years of age should generally not be sentenced to imprisonment. After the High Court dismissed the revision petition; the accused requested for application of the Probation of Offenders Act in his favour. The High Court refused for the same. The accused then sought relief from the Hon’ble Supreme Court through a special leave petition. The central issue before the Supreme Court was whether an appellate court could apply the Act to an accused convicted by the Trial Court before the Act was enacted. The Supreme Court, with a majority of 2:1, answered affirmatively. Justice Subba Rao concluded that, in such petitions, the principle of beneficial construction mandates that even an ex post facto law can be applied to reduce the punishment. The Hon’ble Supreme Court allowed for such retrospective implementation of criminal laws, where the issue pertinent was the reduction of punishment in the offence. This is based on the principle that laws should not be applied retrospectively in a way that imposes greater punishment than what was applicable at the time the offence was committed. But it is in the interests of the accused when a criminal law with reduced punishment is applied retrospectively. This ensures that he is not given more punishment unnecessarily.
In the case ofM/s A.K. Sarkar & Co. & Anr. v. The State of West Bengal & Ors. (2024), one of the issues was whether the appellant could be granted the benefit of the new legislation and be awarded a lesser punishment as is presently prescribed under the new law. The Hon’ble Supreme Court took reference from the case of T. Barai v. Henry Ah Hoe (1983) where it held that when an amendment is beneficial to the accused it can be applied even to cases pending where such a provision did not exist at the time of the commission of offence. The Court referred to other cases too namely, Nemi Chand v. State of Rajasthan (2016) where six months of imprisonment was modified to a fine of Rs. 50,000/-. The same principle was applied by the Supreme Court in the case of Trilok Chand v. State of Himachal Pradesh (2020) where the sentence of three months of imprisonment and Rs. 500/- of fine was modified to that of only a fine of Rs. 5,000/-.
Landmark cases in respect of Article 20(1) of the Indian Constitution
Assume that a man, Bhairav Surve, practising black magic in Dhamangaon village of Maharashtra, murdered a child in his locality on 20th December 2012. Later, in December 2013, the legislature of Maharashtra passed the Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013. However, by virtue of the provision against ex post facto law, Bhairav Surve cannot be prosecuted and charged under the mentioned Act as the commission of offence dates back to when the act did not exist.
Though the legislature in India has the authority to implement laws retrospectively, Article 20(1) prohibits the legislature from enacting a criminal law retrospectively. This provision ensures that no one could be booked or charged under such laws, which were not in existence at the time of the commission of the offence.
The Landmark judgement governing this doctrine came in the year 1953, in the case of Kedar Nath Bajoria v. State of West Bengal (1953), the Hon’ble Supreme Court stated that whenever an act is declared as a criminal offence, providing a punishment for the same by the legislature, it is always applied prospectively and cannot be implemented retrospectively.
In the case of Maru Ram v. Union Of India & Anr. (1980), the Court noted that Article 20(1) also includes the rule that there will be no retroactive infliction of penalties heavier than those existing ones at the time of commission of the offence.
Double jeopardy: Clause (2) of Article 20 of the Indian Constitution
“Nemo debet bis vexari pro una et eadem causa”
Article 20(2) is based on the above maxim which means, “No one ought to be vexed twice for the same offence.” This maxim embodies the protection against double jeopardy.
The Doctrine of double jeopardy traces back its origin to American jurisprudence of punishment and means that “no person can be prosecuted and punished twice for the same offence”. Article 20(2) reads that no one could be convicted and punished more than once for the same offence involving the same set of facts. In essence, it guarantees against the multiple convictions of a person for the same offence in the same set of facts.
When a person is convicted for an offence by a Court of a competent authority, the conviction bars any further criminal proceedings against him for the same offence. The basic idea is that nobody should be punished twice for the same offence. If an individual is tried again in a court, he can plead his formal acquittal or conviction as a complete defence to avoid being punished twice. Formally, he can take the plea of autrefois acquit or autrefois convict.
The Fifth Amendment of the U.S. Constitution provides that “No person shall be subject for the same offence to be twice put in jeopardy of life or limb.” This protection is not only against being punished again for the same offence but also against being put in danger by facing another trial for the same crime. The scope of Article 20(2) in India is limited as compared to the principle of double jeopardy in England and the United States. In India, protection is available only against being tried or punished again for a crime for which a person has already been convicted, but it does not protect against being tried again after being acquitted. On the other hand, both in Britain and the USA, a person cannot be tried again even if they were acquitted in the first trial. In India, both the trial and punishment must happen together for Article 20(2) to apply. If there was a trial but no punishment, the protection of Article 20(2) does not apply, and the person can be tried again for the same offence. In the case of O.P. Dahiya v. Union of India (2003), the Hon’ble Supreme Court held that when a person is neither convicted nor acquitted of the charges against him in the first trial, a retrial in such a case would not amount to double jeopardy. A retrial can be directed even when an accused is acquitted. In the case of Nasib Singh v. State of Punjab (2021), the Hon’ble Supreme Court devised some guidelines with regard to retrials. It held that the Appellate Court may direct a retrial only in ‘exceptional’ circumstances to avert a miscarriage of justice.
Further, if the same set of facts constitutes offences under two different laws, then double jeopardy is not barred. As observed by the Hon’ble Supreme Court in the case of State of Bihar v. Murad Ali Khan (1988), if there are two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred.
Landmark cases on Article 20(2) of the Indian Constitution
In the case of Venkataraman v. Union of India (1954), the Supreme Court of India established that this provision deals exclusively with judicial punishments and provides that no person should be prosecuted twice by the judicial authorities.
The most crucial landmark judgement came in the case of Maqbool Hussain v. State of Bombay (1953), where the person accused was possessing some amount of gold, which was against lex loci at the time and gold was confiscated by the customs authority. And, later when the person was prosecuted before a criminal court, the court was confronted with the question of whether this amounts to double jeopardy. However, the Supreme Court observed that departmental proceedings i.e., proceedings taken by the customs authority, in this case, do not amount to trial by a judicial tribunal. Thus, the proceedings before the criminal court are not barred in this case and the proceedings can go on.
In a nutshell, departmental proceedings are independent of trial by a judicial court or tribunal. However, the prosecution may happen if the facts are distinct in subsequent proceedings. The same was established by the Supreme Court of India in the case of A.A. Mulla v. State of Maharashtra (1996), and it was observed that Article 20(2) would not be attracted in those cases where the facts are distinct in subsequent offence or punishment.
The defence from prosecution for the second time has also been embodied in Section 300(1) of the Code of Criminal Procedure, which says that someone who had been convicted or acquitted by a competent court for some offence will not be liable to be prosecuted again till the previous conviction or acquittal remains in force. Thus, a conviction for the same offence and on the same set of facts is prohibited for the second time. This provision does devise a rule for where the second trial is permissible and where not.
Prohibition against self-incrimination: Clause (3) of Article 20 of the Indian Constitution
“nemon tenetur seipsum accusare”
Article 20(3) is based on the abovementioned maxim which means that “no person is obliged to accuse himself”. The right against self-incrimination has existed since mediaeval times but gained importance in modern times as well since its development in common law countries. This right was started to be considered an essential right and one of the important facets of the principles of natural justice.
Article 20(3) lays down that a person cannot be compelled to be a witness in his/her own prosecution or case. This is also embodied in the American Constitution by virtue of the 5th Amendment. The 5th Amendment of the U.S. Constitution states that no individual shall be prosecuted for a serious crime unless indicted by a grand jury, except in certain military circumstances during wartime or public emergencies. It also prohibits double jeopardy, self-incrimination and deprivation of life, liberty, or property without due process of law.
The same is provided by the Constitution of India in Part III under Article 20(3). It provides that no one could be forced to provide such information or evidence orally or by documentary means, which could be used against him during the trial.
Also, a person can “be a witness” not merely by giving oral evidence but also by producing documents or making intelligible gestures, as in the case of a dumb witness, as held in M.P. Sharma v. Satish Chandra (1954). There is no restriction on authorities to search for documents or do seizures under Sections 94 and 96 of the CrPC. The information and evidence produced voluntarily by the accused are also permissible and not barred by Article 20(3).
Let’s understand this with an illustration. Suppose that there is some Mr Jones, who is being tried for the offence of murder of his stepbrother and while in police custody, he says, “I have killed my stepbrother”. The same could not be admitted in the Court. However, under Section 27 of the Indian Evidence Act, 1872 (Section 23 of the BSA), if Mr. Jones discloses such information that leads to discovery, such as the weapon he used and the location of the disposed weapon, then it can be used as evidence. It would not be violative of Article 20(3). The rationale behind this is that the evidence must be in the form of communication and, for the same reasons, the medical examination done during the course of a trial is permissible. This is why the narco analysis test is frequently used by investigating authorities in India to gather information and evidence and is also considered to be not violative of the provision under Article 20(3) by virtue of Section 27 of the Evidence Act (Section 23 of the BSA).
Section 27 of the Evidence Act, 1872 and Article 20(3) of the Constitution of India are interrelated to each other in the context of self-incrimination and the admissibility of confessions. Section 27 permits the admissibility of information obtained from an accused in police custody if it leads to the discovery of facts relevant to the case. Section 25 of the Evidence Act, 1872 (Section 23 of the BSA) makes confessions made to a police officer inadmissible in the Court of law. Section 27 of the Act allows the use of confessions made to the police in certain circumstances. On the other hand, Article 20(3) of the Constitution protects individuals from being compelled to be a witness against themselves. It safeguards against self-incrimination and ensures that nobody is forced to provide such evidence that may incriminate them. It aims to prevent the abuse of power by the police. Section 27 of the Evidence Act and Article 20(3) of the Constitution try to balance the collection of evidence and protection of the rights of the accused. According to Section 164 of CrPC, 1973 (Section 183 of the BNSS) the voluntary confessional statements made to the Magistrate by following all precautions are admissible in the court and also considered a substantial piece of evidence.
Prohibition against self-incrimination could only be put into effect if the person is accused of a criminal offence. This doctrine could not be invoked for cases other than criminal cases. Also, as held by the Hon’ble Supreme Court in Raja Narayanlal Bansilal v. Maneck Phioze Mistry (1960), to claim immunity from being self-incriminated, there must exist a formal accusation against the person and mere general inquiry and investigation do not form grounds for the same.
Also, the authorities can not compel the accused to produce evidence which can be used against him in his trial. The evidence can be oral or documentary. However, an exception to this lies under Section 91 of the CrPC (Section 94 of the BNSS), which gives authority to a court or an officer to issue an order demanding documents that are under the possession of the accused.
Another provision which guarantees prohibition against self-incrimination is Section 161(2) of CrPC, 1973 (Section 180(2) of the BNSS), which says that while being examined by the authorities, a person is bound to answer all the questions truly except those which have a propensity to be used against the person himself later during trial.
Compulsion under Article 20(3) of the Indian Constitution
To bring the evidence within the constraints of Article 20(3), it must be proved that:
The person making the statement was accused at the time of making the statement;
It had a material bearing on his criminality; and
He was compelled to make the statement.
As per Article 20(3), ‘Compulsion’ is duress; compulsion must be physical, objective action and not just the state of mind of the person making the statement. However, if the person’s mind has been influenced by an external process making the statement involuntary, it can be considered a compulsion and, therefore, extorted in the case ofState of Bombay v. Kathi Kalu Oghad & Ors. (1961), the Supreme Court stated that the mere fact that the accused was in police custody at the time of making the statement would not make a presumption with regard to compulsion for making the statement. In the case of Ghazi v. State of Uttar Pradesh (1966), the Allahabad High Court held that if the police used third-degree methods to obtain a statement, then it would be barred under Article 20(3). In the case of Yusufalli v. State of Maharashtra (1968), the Supreme Court held that if an accused is induced into providing incriminatory information and the accused reveals the truth without knowing that his statements are being heard or recorded then there is no element of duress, coercion or compulsion and, therefore, he cannot claim the protection under Article 20(3). Further, in the case of R.M. Malkani v. State of Maharashtra (1973), the Supreme Court ruled that a telephonic conversation between two parties, if recorded by the police by the consent of one of the parties, could be used as evidence as it was voluntary and there was no duress or compulsion to extract the same. The fact that the tape recording was done without the appellant’s knowledge does not make the conversation inadmissible against him. In the case of Laxmipat Choraria v. State of Maharashtra (1968), the Supreme Court stated that, if the accused volunteers evidence against himself, then also Article 20(3) is not violated since Article 20(3) gives only a privilege and the accused is free to waive it if he wants to.
Section 313 of the CrPC, 1973 (Section 351 of the BNSS) allows courts to question the accused after witnesses have testified on their behalf. The Court can draw conclusions from the accused’s responses or refusal to answer as it deems appropriate. Section 313 does not violate Article 20(3) because the accused’s responses are only considered during the inquiry and do not replace evidence presented by the prosecution. The main purpose of Section 313 is to assess the accuracy of the prosecution’s version through explanations provided by the accused.
In the case of Selvi v. State of Karnataka (2010), the Supreme Court held that compulsory administration of certain scientific techniques, such as narco analysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) bear a ‘testimonial’ character and, therefore, triggers the protection under Article 20(3) of the Constitution.
The protection under Article 20(3) is not only available to individuals but also to an incorporated body if it is “accused of an offence”.
In the case of Sharda v. Dharmpal (2003), the Supreme Court answered the issue of whether Section 151 of the Code of Civil Procedure, 1908, could be invoked to compel a person to undergo a medical examination. The Court held that the civil courts have requisite power under Section 151 of CPC, 1908, to issue such direction either suo motu or otherwise, which would lead the court to the truth. Therefore, the protection of Article 20(3) does not extend to parties and witnesses in civil proceedings.
Further, the protection under Article 20(3) does not apply to administrative investigations, even if the primary aim of the proceedings may be to find out whether the individual has committed an offence or not.
Protection against conviction under procedural laws
Protection against conviction under procedural laws refers to the legal safeguards and rights afforded to individuals accused of crimes during the criminal justice process. These protections ensure fairness, prevent miscarriage of justice and uphold fundamental rights of the accused.
Res judicata under the Code of Civil Procedure, 1908
“Res judicata” is a legal principle derived from Latin which literally means “a matter adjudged”. It is a fundamental doctrine within the judicial system that ensures the finality and conclusiveness of judicial pronouncements.
Section 11 of the Code of Civil Procedure embodies the principle of res judicata. It is also known as the “rule of conclusiveness of judgement”. Section 11 states that, “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent raised, and has been heard and finally decided by such Court.”
The doctrine of res judicata is based on three Latin maxims, which are as follows:-
Nemo debet bis vexari pro una et eadem causa – This maxim means that “no one ought to be twice vexed or troubled for the same cause”. This principle prohibits prosecution or punishment of a person for the same offence or cause of action twice. It ensures that once a person has been acquitted or convicted of a particular offence, they cannot be tried again on the same charges, regardless of the judgement of the first trial, hence, when the same parties should not be permitted to re-litigate the same dispute.
Interest republicae ut sit finis litium – This maxim means that “it is in the interest of the State that there be an end to litigation. It emphasises the importance of resolving legal disputes expeditiously as it is in the best interest of the State or the society as a whole. This maxim serves as a fundamental concept in the administration of justice, guiding the legal system towards fairness and efficiency.
Res judicata pro veritate accipitur – It means that “a matter an adjudged is accepted as true”. This principle signifies the conclusiveness and finality of legal decisions once a matter has been legally resolved and a judgment is rendered. It prevents re-litigation of issues that have already been decided by a Court.
It is to be noted that a matter just being in a former suit would not suffice to invoke the doctrine of res judicata. It is important that the matter is directly and substantially decided in a previous suit. If two suits are identical in nature then too res judicata can be applied.
Constructive res judicata prevents parties from re-litigating specific issues or facts that were litigated and determined in a prior case. It applies to particular issues that have already been conclusively resolved.
Double jeopardy under the Code of Criminal Procedure (CrPC)
Section 300 of the CrPC (Section 337 of the BNSS, 2023) and Article 20(2) of the Constitution both deal with the protection against double jeopardy. However, there are differences between them in terms of scope and application. As discussed above, when a person is being accused of committing an offence for which he has been convicted before, he can take the plea of autrefois acquit or autrefois convict, which literally means ‘previously acquitted’ and ‘previously convicted’, respectively. In terms of scope, Article 20(2) is limited as it does not apply to prevent a second prosecution for the same offence if a person is acquitted in the first prosecution. On the other hand, Section 300 of CrPC has a wider scope and covers both previous acquittal or conviction of the same offence. This means that if a person is acquitted or convicted of an offence and a distinct charge could be made for the same offence, he cannot be prosecuted for the same offence again. Further, it bars a second trial of the same offence against the same person, even if there was no punishment for the same offence as a result of the first prosecution. To sum it up, we can say that while both Article 20(2) and Section 300 of CrPC deal with the protection against double jeopardy, Article 20(2) applies only in cases where there has been a prosecution followed by a conviction, while Section 300 covers both previous acquittal or conviction of the same offence. Section 300 is wider in scope as it covers both acquittal and conviction.
However, the application of this provision does demand certain conditions to be fulfilled:
Firstly, the accused or the person in question must be charged with an “offence”. The offence is defined under Section 3(38) of the General Clauses Act, 1897. It states that an offence shall mean any act or omission made punishable by any law for the time being in force.”
Secondly, the accused or the person in question must have been tried by the court previously, and it is concerned only with judicial prosecution and proceedings.
Thirdly, the court trying the case must be competent i.e., it should act under its competent jurisdiction and should not exercise its power ultra vires.
Fourthly, the previous proceeding must have ended in either acquittal or conviction and if it ended merely after inquiry, such cases are not covered under the ambit of Section 300(1) of CrPC.
Fifthly, the previous conviction/acquittal must be in force and should not have been set aside by appeal or retrial. This is an essential condition because in the absence of a previous conviction, there will be no bar for the second prosecution, and the second trial may happen.
Lastly, in the subsequent trial, he/she must be tried for the same offence and on the same facts for any other offence having a different charge under sub-sections (1) and (2) of Section 221 of the CrPC (Section 244 of the BNSS).
With regards to barring a second trial when the accused is convicted or acquitted, one must understand the distinction between “acquittal” and “discharge”. Discharge of the accused does not amount to an acquittal. A person is said to be discharged when he is relieved from the legal proceedings by an order which doesn’t amount to judgement which is the final order in a trial resulting in either conviction or acquittal of the accused. An order of discharge should not interpreted as a judgement. Discharge may take place either after the preliminary inquiry or during a trial before a Magistrate. When there is no prima facie case against the accused and he has not been put on his defence, nor any charge is drawn against him to which he can plead, he should be discharged and not acquitted. A person who has been discharged by the Court may be charged again with the same offence if another testimony is discovered against him but a person who has been acquitted cannot be put on trial again for the same offence involving the same charges. In the case of E.K. Thankappan v. Union of India (1989), the Special Judge discharged the accused as there was no proper sanction and the Court had no jurisdiction to take cognisance of the offence rendering the entire prosecution proceedings void ab initio. The Kerala High Court while examining this case held that the discharge of the accused cannot be construed as acquittal. Hence, the second trial involving the same facts and charges is not barred. A wrong order of acquittal will not bar a subsequent trial, however, if a person, who ought to have been acquitted is erroneously ordered to be discharged only then the order of discharge shall be treated as an order of acquittal barring a retrial.
If the offence is the same; the first conviction or acquittal is barred by Article 20(2) of the Constitution and Section 300 of the CrPC. Though, if the offence is different and based on different facts but based on the same evidence then the previous trial would not bar a second trial. “Same offence” refers to the same criminal act or omission. In the case of, Ravinder Kaur v. Anil Kumar (2015), it was held that the explanation of Section 300 mandates that the dismissal of a complaint or discharge of an accused cannot be considered an acquittal. In this case, the respondent was discharged in furtherance of a complaint made by the appellant in respect of the offence under Section 376 of the IPC (Section 64 of the BNS, 2023) of the Indian Penal Code, without any trial being conducted against him. Since the respondent was just discharged but not acquitted, therefore, the second complaint was not barred.
Nonetheless, there exists an exception to this provision i.e., the principle of issue estoppel, also known as “cause of action estoppel”. The principle of Issue Estoppel means that once an issue has been conclusively determined between parties in a legal proceeding, it cannot be litigated again in a subsequent proceeding. So, if a specific issue has been decided in a previous trial, it cannot be raised again in a later trial involving the same parties. It is somewhat similar to the concept of res judicata. Issue estoppel, like res judicata, involves the concept of finality in legal proceedings. However, issue estoppel specifically focuses on preventing the re-litigation of those issues that have been conclusively determined in a prior proceeding. The above-mentioned exception provides for estoppel against the ongoing prosecution if the fact-finding happens to be in favour of the accused, but it does not bar from subsequent proceedings for a different offence. However, to invoke this defence, not only the parties involved but the facts in issue should also be the same.
Relevancy of previous judgements to bar a second trial or suit
According to Section 2(9) of the Civil Procedure Code, 1908, the expression “judgment” is defined as the statement given by the judge on the grounds of a decree or order. It incorporates various details about the case such as facts, issues, arguments of both parties, evidence presented before the court, etc. In general, judgment is of two types:
Judgement in rem – It refers to a judgement or decision rendered by a court that directly affects the rights of all individuals, as opposed to just the parties involved in the suit. In simple words, it is a judgment that operates against the whole world rather than only the parties to the legal proceedings. It is binding on the whole world as it addresses issues of broader public or community interest rather than just the private rights of the parties involved.
Judgement in personam – A judgement in personam is a decision rendered by a court that is enforceable against a specific individual or party. It establishes the rights and obligations of the parties involved in a suit and is binding only on those parties. When courts issue a judgment in personam, they do so in cases where the dispute revolves around personal rights or obligations. Unlike judgment in rem which affects is enforceable against the whole world, a judgment in personam is limited in scope to the parties directly involved in the case.
Section 40 of the Evidence Act (Section 34 of the BSA) deals with the relevancy of previous judgements or orders in the course of legal proceedings. According to this provision, the existence of any judgement, order, or decree which by law prevents any court from taking cognisance of a suit or holding a trial is a relevant fact when the question is whether such court ought to take cognisance of such suit or to hold a trial. It simply means that, if a previous judgement, order, or decree has already been passed by a competent court on the same matter, then it can prevent the same parties from litigating the same issue in a subsequent suit or trial. This is based on the principle of res judicata pro veritate accipitur which is the Latin maxim for the doctrine of res judicata. This maxim means that a matter once judged by a court of competent jurisdiction must be duly accepted as correct and cannot be re-litigated between the same parties. For example, if A and B are two parties. A sued B for fraud and the Court decided the case in favour of B but later A again filed a suit against B for the same fraud, the existence of the previous judgement will be relevant in the subsequent suit and can be used to bar the trial of the case. In the case of Mrs. Sasikala Menon v. State of Kerala & Anr. (2023), the Kerala High Court held that the principles of res judicata would apply to criminal proceedings as well.
Section 41 of the Evidence Act, 1872 (Section 35 of the BSA, 2023) deals with the relevancy of certain judgements in probate, matrimonial, admiralty, or insolvency jurisdiction. It pertains to final judgements that confer or take away legal character from a person or declare entitlement to a specific thing. These judgements are relevant when determining the existence of any legal character or the title of a person to a specific thing. These judgements are considered conclusive proof of some main aspects such as:
Any legal character conferred by the judgment is deemed to have accrued at the time when the judgment came into operation.
The legal character declared by the judgment to belong to a person is considered to have accrued to that person at the time specified in the judgment.
Any legal character taken away from a person is deemed to have ceased at the time specified in the judgment.
Anything declared to belong to a person by the judgment is considered to have been the property of that person at the time specified in the judgment.
Section 41 establishes that final judgements in these specific jurisdictions serve as conclusive proof of the legal character, entitlements, and property rights they confer, declare, or take away, at the times mentioned in the judgment.
In the case of Surinder Kumar v. Gian Chand (1957), the Hon’ble Supreme Court held that the judgement of a probate court granting probate of a will in favour of the petitioner must be presumed to have been obtained in accordance with the procedure prescribed by law and it is a judgement in rem.
Under Section 42 of the Evidence Act, 1872 (Section 36 of the BSA, 2023), the relevance and effect of judgements, orders, or decrees other than those mentioned in Section 41 of the Evidence Act, pertain to matters of a public nature relevant to the inquiry. These judgements are considered relevant if they relate to public matters but are not considered conclusive proof of the facts they state.
For example, if X, a property owner, files a suit against Y, alleging that Y has trespassed on X’s land. During the trial, Y argues the existence of a public easement over the land, which allows the public to pass through X’s land. X denies any such easement right. In this situation, the existence of a previous decree in favour of Y in a similar suit filed by X against Z where Z also claimed the existence of the same public easement is relevant. However, the previous decree would not considered conclusive proof that the public easement exists.
Section 43 of the Evidence Act (Section 37 of the BSA, 2023) deals with the relevance of judgements, orders or decrees that are not covered under Sections 40, 41, and 42 of the Evidence Act. According to this provision, such judgements are irrelevant unless their existence is a fact in issue or is relevant under some other provisions of the Act. This means that those judgements, orders or decrees that do not fall under the categories mentioned in Sections 40, 41, and 42 are not automatically relevant in a legal proceeding. However, if the existence of such a judgement is a fact in issue or is relevant under some other provision of the Act, then it may become relevant.
For example, if A and B separately sue C for libel. A obtains a decree against C for damages, but the fact that A has obtained a decree against C is irrelevant while deciding the case of B and C. This means that even though A has obtained a decree against C, it does not mean that C is by default liable to B for the same libel.
Section 44 (Section 38 of the BSA, 2023) of the Evidence Act, 1872 permits a party to a legal proceeding to introduce evidence to challenge a judgement, order, or decree that has been presented by the opposing party as evidence. This judgement can be used to demonstrate that the concerned judgement, order, or decree was delivered by an incompetent court obtained through collusion (an illegal agreement or through a conspiracy between the parties) or obtained through fraudulent means.
This section ensures that those judgements or orders which are obtained through fraudulent, collusive means or passed by a court of incompetent jurisdiction can be challenged and are not accepted as valid evidence in the court.
For example, A and B enter into a contract. A is based in Delhi. B is based in Rajasthan. A breaches the Court. B sues A in a court in Karnataka and obtains a favourable order. Now, since the courts of competent jurisdiction in this case is either a court in Delhi or Rajasthan; the order obtained by a Karnataka Court can be challenged as it was passed by a court of incompetent jurisdiction.
International aspects of rights of a convicted person
Under International Law, various legal frameworks and agreements discuss the significance of safeguarding the rights of individuals who are in custody, whether as prisoners, undertrials, or arrested. This recognition underscores the fundamental principle that all human beings possess inherent dignity and are entitled to certain fundamental rights that cannot be taken away. Key international instruments such as the International Covenant on Civil and Political Rights (ICCPR), the Geneva Convention, the Universal Declaration of Human Rights (UDHR) and the European Convention on Human Rights (ECHR) affirm that every individual has the right to liberty, security and protection in respect of conviction for offences.
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) is a fundamental international human rights treaty adopted by the United Nations General Assembly in 1965. It entered into force on March 23, 1976, and it has now become one of the primary instruments in the protection and promotion of civil and political rights worldwide. The ICCPR, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR), constitute the International Bill of Human Rights. The ICCPR outlines the civil and political rights that are inherent to all individuals, regardless of their nationality, race, religion, sex, caste, etc. These rights include the right to life, freedom of expression, freedom of religion, the right to a fair trial, protection against arbitrary arrest or detention, etc. The covenant obliges the signatory nations to respect, protect and fulfil these rights for all the individuals within their jurisdiction. India has ratified ICCPR and ICESCR. Several articles of ICCPR discuss protection from conviction for offences. Some of them are as follows:
Article 9 of the Indian Constitution
It states that all persons have the right to liberty and security. No one shall be subjected to arbitrary arrest or detention. No human being shall be deprived of his liberty except on the grounds and in accordance with procedure established by law. Further, anyone who is arrested shall be informed of the reasons for his/her arrest during the time of arrest. He/she shall also be informed of the charges laid down against him/her. As given under our Code of Criminal Procedure (CrPC), ICCPR also states that anyone who is arrested or detained on a criminal charge shall be brought before a judge or authorised officer promptly.
Article 10 of the Indian Constitution
Article 10 of ICCPR states that all those who are deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. It states that the accused persons should be kept segregated from the convicted persons and shall not be treated equally to the convicts.
Article 14 of the Indian Constitution
Article 14 mandates equal treatment before the courts and tribunals. While determining any criminal charge against a person, he shall be entitled to a fair and public hearing by a competent, independent and impartial court established by law. Further, everyone charged with a criminal charge shall be presumed innocent until proven guilty. Similar to Article 20(3) of the Indian Constitution, Article 14(3)(g) of ICCPR mandates that no person shall be compelled to testify against himself or to confess his guilt. Furthermore, Article 14(6) of ICCPR requires that, if a person has been convicted of a criminal offence and later when his conviction has been reversed, or he has been pardoned on the ground that a new or newly discovered fact shows that there has been a miscarriage of justice, the individual who has suffered the punishment of such conviction shall be compensated as per the law. Similar to Article 20(2) of the Indian Constitution, Article 14(7) of ICCPR asserts that no one shall be tried or punished twice for an offence for which he has already been convicted or acquitted in accordance with the law.
Article 15 of the Indian Constitution
It states that no person shall be considered guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it was committed. This Article resonates with Article 20(1) of the Constitution of India.
Universal Declaration of Human Rights (UDHR)
The Universal Declaration of Human Rights (UDHR) is a key document in the history of human rights adopted by the United Nations General Assembly on December 10, 1948. It represents a global consensus on the fundamental rights and freedoms to which all human beings are inherently entitled, regardless of race, nationality, religion, gender, or any other status. The UDHR serves as a common standard of achievement for everyone and all nations. It has also been translated into over 500 languages, making it the most translated document in the world. India has been a signatory to the UDHR since 1949. The UDHR discusses human rights encompassing civil, political, economic, social and cultural rights. Some of the key provisions are as follows:
Article 9 of the Indian Constitution
It states that no person shall be subjected to arbitrary arrest or detention.
Article 10 of the Indian Constitution
It states that everyone is entitled to a fair and public hearing by an independent and impartial court for the determination of his rights and obligations and of any criminal charge against him.
Article 11 of the Indian Constitution
It states that everyone has the right to be presumed innocent until proven guilty according to law in a public trial. Further, it states that no one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence at the time when it was committed. The same principle is enshrined under Artice 20(1) of the Indian Constitution.
Landmark cases
State of Bombay v. Kathi Kalu Oghad (1961)
The case of State of Bombay v. Kathi Kalu Oghad (1961) is a landmark case in Indian criminal jurisprudence with implications for criminal justice and the protection of fundamental rights of accused persons.
Facts
Kathi Kalu Oghad, along with Champraj, was accused of the murder of the victim, namely Popat Ramji, in the state of Bombay. Upon arrest, Oghad was taken into police custody and was asked to rewrite the contents of the chit discovered on the crime site. After forensic examination, it was found out that Oghad had written an incriminating chit. Champraj and Oghad were prosecuted jointly and were convicted of murder and given life imprisonment. While appreciating the evidence, the court excluded the handwriting specimens from the admissible evidence. Oghad argued that the police violated his constitutional right to remain silent under Article 20(3) of the Constitution by compelling him to provide his handwriting specimens while in custody. Despite the absence of clear evidence of coercion by the police, the court acknowledged the possibility of compulsion. The High Court concluded that the identification of Oghad had not been proven beyond a reasonable doubt. Hence, the court acquitted him. The State of Bombay appealed the acquittal to the Supreme Court, raising questions regarding the extent of Article 20(3) of the Constitution.
Issues
This case raised several questions with regard to the interpretation of Article 20(3) of the Constitution. The issues are as follows:
Whether providing specimen handwriting while in police custody constitute self-incrimination under Article 20(3)?
Whether compulsion can be presumed when the accused provides a statement or evidence during police custody?
Whether merely providing handwriting specimens make the accused a ‘witness against himself’?
Whether investigative actions taken by police, such as collecting Deoxyribonucleic acid (DNA), fingerprints, handwriting samples, etc., align with the constitutional principles and the protection against self-incrimination?
Judgement
The Hon’ble Supreme Court reconsidered the case of M.P. Sharma v. Satish Chandra (1954), which affirmed that the accused of any crime shall not be compelled to provide incriminating information against himself. It was also reiterated that Article 20(3) would apply to the production of documents as well as oral testimony. The Supreme Court in the M.P. Sharma case held that evidence could be furnished “through lips or by the production of a thing or of a document or in other modes”. However, in the Oghad case, the Supreme Court limited the scope of Article 20(3) and held that the scope of being a witness is limited to providing oral or written statements which conveyed the personal knowledge of the accused. The protection under Article 20(3) extends to “compelled personal testimony”. Through this decision, it can be implied that the Supreme Court indicates that fingerprints, specimens of handwriting, DNA, etc, are not protected under Article 20(3).
Nandini Satpathy v. P.L. Dani & Anr. (1978)
Nandini Satpathy v. P.L. Dani & Anr. (1978) is one of the most cited cases under Article 20(3) of the Constitution, which discusses the right against self-incrimination and the right to remain silent. This right is recognised in India under Article 20(3) as well as Section 161(2) of the Code of Criminal Procedure, 1973.
Facts
The appellant, Mrs. Nandini Satpathy, former Chief Minister of Odisha, was called to Vigilance Police Station, Cuttack, in connection with a case registered against herself and her sons under the Prevention of Corruption Act, 1988. An FIR was filed against them on the grounds of acquiring disproportionate assets during her tenure. During interrogation, she was handed a questionnaire and was asked to answer the questions orally. She did not answer a few questions and remained silent, exercising her right against self-incrimination under Article 20(3) of the Constitution. Upon her refusal to answer the questions, she was booked under Section 179 of the Indian Penal Code, 1860, which deals with the offence of refusal to answer a public servant on a subject matter. Mrs. Satpathy challenged the charges against her. After not receiving a favourable outcome from the High Court, she appealed to the Supreme Court.
Issues
Whether suspect of an offence is entitled to remain silent, similar to ‘accused of any offence’?
Whether the right against self-incrimination is available only with reference to a particular accusation in regards to which the police is investigating, or does it extend to other pending or potential accusations outside the purview of the particular accusation which has led to the questioning?
Whether the right to remain silent is available only in court or during an investigation as well?
What are the parameters of Section 161(2) of CrPC?
Judgement
The Hon’ble Supreme Court cited the case of Pakala Narayana Swami v. Emperor (1939) and concurred with its judgement, holding that ‘any person’ includes a suspect who is believed to be aware of the facts of the case by the police. Further, the court held that a person has the right to remain silent and is available to the accused not just in the courtroom but out of the courtroom as well. To explain the ambit of Article 20, the court cited the case of M.P. Sharma and stated that Article 20(3) applies in the courtroom as well as during police investigations. The court settled the debate by holding that, if, under Section 161(2) of CrPC, there is a possibility that the question asked during interrogation is self-incriminatory, then such a question need not be answered by the witness.
Selvi v. State of Karnataka(2010)
Selvi v. State of Karnataka (2010) is a landmark case that discussed the constitutionality of using neuroscientific investigative techniques such as narcoanalysis, brain mapping, polygraph tests, etc. during the investigation.
Facts
The Hon’ble Supreme Court allowed a Special Leave Petition (SLP) concerning objections raised regarding the involuntary use of neuro-scientific tests such as narco analysis, BEAP (Brain Electrical Activation Profile) and polygraph tests. The narco analysis test involves the intravenous administration of the drug sodium pentothal, which causes a hypnotic trance, allowing the subject to become less inhibited. The BEAP measures the brain activity in response to a selected stimulus to determine if the subject is familiar with certain information. Further, the polygraph test measures the physiological responses, including respiration, blood pressure, pulse, etc. to measure lying or deception by the subject.
Issues
Whether the involuntary administration of the said techniques violate the ‘right against self-incrimination’ guaranteed under Article 20(3) of the Constitution?
Whether the involuntary administration of the said techniques is justified as a reasonable restriction on ‘personal liberty’ in the context of Article 21 of the Constitution?
Judgement
The Court held that compulsory administration of neuroscientific tests against the consent of the accused amounts to testimonial compulsion and violates the right against self-incrimination guaranteed under Article 20(3) of the Constitution. Further, the Court held that other than the standard laid down under Article 20(3), the compulsory administration of neuroscientific tests needs to meet the standard of ‘substantive due process’ for restricting the personal liberty of a person. Lastly, the Court held that no neuroscientific tests could be administered to an accused without his/her consent. The consent of the accused shall be obtained before a Judicial Magistrate in the presence of the accused’s lawyer. The statement made would be considered a mere statement and not a confessional statement.
The current case arose after the arrest of four persons, including the appellant by the Narcotics Control Bureau (NCB) officers under the NDPS Act, 1985 for possession and transportation of narcotic drugs. The officers exercised their powers under Section 67 of the NDPS Act to record a confession of the appellant. Section 67 empowers the officers conducting inquiries to call any person for interrogation who may be in connection with violations of the Act. Despite the appellant retracting his confession later, the Additional Special Court under the NDPS Act admitted the confession as evidence and convicted him. Aggrieved by the decision, the appellant approached the Madras High Court, arguing that he was convicted solely on the basis of his retracted confessional statement recorded by the NCB officers. The Madras HC rejected his plea and dismissed the appeal. The appellant appealed the same before the Supreme Court.
Issues
Whether the officers empowered under the NDPS Act would be considered as ‘police officers’ within the meaning of Indian Evidence Act, 1872 or not?
Whether any confessions recorded by such officers would attract Section 25 of the Evidence Act, which states that any confessions made to police officers is not admissible as evidence in the Court or not?
Whether the usage of confessions recorded under Section 67 of the NDPS Act as evidence violates Articles 20(3) and 21 of the Constitution or not?
Judgement
The Court held that a person’s right against self-incrimination and right to privacy would be applicable against confessions recorded under Section 67 of the NDPS Act. Hence, confessions recorded by the NCB officers would not be admissible as evidence. The Court further held that the officers empowered under the NDPS Act would also be considered as ‘police officers’ within the meaning of Section 25 of the Evidence Act and providing exceptions to certain officers under some penal statutes directly violates the right to equality, privacy and the right against self-incrimination under Article 14, 21 and 20(3) of the Constitution.
Conclusion
When India was under British rule, the rights of Indians were often restricted and they faced many injustices. Prevention of such abuses of power against persons, who are accused of commissioning any offence, from happening again was of paramount importance, hence, Article 20 was included as a fundamental right in the Constitution. In today’s world too, the right to protection in respect of conviction for offences remains incredibly relevant as it protects individuals from self-incrimination and ensures fair treatment under the law. Moreover, in the digital age, Article 20 has become more significant because of the usage of new methods such as the NARCO Analysis Test, Brain Electrical Activation Profile (BEAP), etc. by the police to extract information or confession from accused against their will and consent and use the same against them in their prosecution. Article 20 works as an essential constitutional safeguard towards maintaining the rule of law and ensuring a just society. The Supreme Court of India has played a pivotal role in safeguarding the rights under Article 20 of the Constitution through various judgements. Supreme Court’s proactive approach in expanding the scope of protection through cases like Selvi and ensuring a delicate balance between the rights of both victim and accused through cases like Kathi Kalu Oghad is applaudable. As an emerging superpower and a responsible member of the global community, adhering to universal principles of human rights not only demonstrates India’s commitment to uphold International law but also reflects its reputation as a democratic and progressive nation. As we realise the importance of Article 20, we must not forget the words of Mahatma Gandhi – “The true measure of any society can be found in how it treats its most vulnerable members.”
Frequently Asked Questions (FAQs)
What is the right against self-incrimination under Article 20?
The right against self-incrimination is protected under Article 20(3) of the Constitution of India. It prohibits an accused person from being made a witness against himself.
Like the USA, does the right to remain silent apply in India?
Yes, the right to remain silent is guaranteed under Article 20(3) of the Constitution.
Why Article 20 cannot be suspended even during an emergency?
Articles 20 and 21 are non-derogable rights that protect the fundamental rights of the citizens, such as protection from conviction of offences and the right to life and liberty. The 44th Amendment Act, 1978 restricted the scope of the President’s powers under Article 359 and established that no person can be deprived of his right to life and liberty even during an emergency.
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This article is written by Shivani Kumari. It discusses the various aspects of Section 137 of the Companies Act, 2013. It provides for the filing of copies of financial statements by the companies to the registrar of the companies. It also discusses the meaning of financial statements and their different types. This article deals with Section 137 of the Companies Act, 2013 and explains the forms of financial statements, mandatory attachments that need to be filed along with financial statements, statutory requirements that need to be complied with while preparing financial statements, and penalties for contravening the provisions.
Table of Contents
Introduction
A company’s financial statement is the document of the company of its financial performance at the end of every financial year. It shows the financial status of the company for a given period. Financial statement as defined in the Companies Act, 2013 consists of a balance sheet, a profit and loss account (income and expenditure account, in the case of a non-profit company), a cash flow statement, and a statement of change in equity. It also includes any explanatory note forming part of, or annexed to any document.
What does the financial statement of the company include
As per Section 2(40) of the Companies Act, 2013, under Chapter IX (Accounts of the Company), financial statements concerning a company include the following:
A balance sheet at the end of the financial year,
A profit and loss account, or in the case of a non-profit company an income and expenditure account for the financial year,
Cash flow statement for the financial year,
A statement of the change in the equity, if applicable, and
Any explanatory note annexed to, or forming part of any document, referred to in sub-clause (i) of sub-clause (iv).
The section further clarifies that the financial statements for a one-person company, small company, or dormant company may not prepare the cash flow statement.
Balance sheet
A balance sheet shows the detailed information about the company’s shareholders’ equity and assets and liabilities of the company at a given point of time.
Asset means anything of value owned by the company. It can be either tangible (eg. plant and machinery) or intangible (goodwill and patents), either fixed (eg. long term investments) or current (investment for a period of less than one year).
Liability means anything that the company owes to others. It can be the amount of loan that the company takes from the outsiders to raise the funds for business operations or an outstanding salary of an employee that has not been paid by the company.
A company is an artificial person therefore it cannot have its own capital. Shareholders’ equity shows the amount of money brought in by the members of the company as part of the share capital of the company.
Statement of profit and loss
A statement of profit and loss reflects the revenues and expenses of a company for a particular period of time. The term revenue means the money generated from the normal business operations. Ideally, a statement of profit and loss has two parts-
trading account, and
profit and loss account.
The direct income and expenses are mentioned in the trading account like purchases and sales made during the year, opening and closing stock of the year and other direct expenses like factory expenses, etc. The output of the trading account is either Gross Profit or Gross Loss.
Gross Profit = (Sales + Closing Stock) – (Purchases + Opening Stock +Factory or Other Direct Expenses)
Gross Loss = (Purchases + Opening Stock + Factory or Other Direct Expenses) – (Sales + Closing Stock)
Profit and Loss account includes the income generated and the expenses incurred by the company from the indirect activities (i.e. activities that are not directly connected to running of the business). Basically, it includes all the activities related to sales and marketing activities of the company.
Cash flow statement
Cash flow statement (CFS) is complementary to the Balance Sheet and Statement of Profit and Loss. It indicates how the company is managing its cash operations. Whether the cash generated is sufficient to meet the debt obligations of the company as well as to meet the operational expenditure of the company. The CFS is prepared under three headings:
Cash flow from operating activities
Cash flow from investing activities
Cash flow from financing activities
Statutory requisites for financial statement
Section 129(1) of the Companies Act, 2013 makes it mandatory that the financial statement shall conform with the accounting standards notified under Section 133 of the Companies Act, 2013.
If the company has made some deviations from the prescribed accounting standards, the company shall disclose such deviations in the financial statements. Along with the deviations, the company has to disclose the reasons for such deviations and the financial effects that have ensued from the deviations. [Section 129(5) of the Companies Act, 2013].
Format of financial statement
Section 129(1) of the Companies Act 2013 makes it mandatory that the financial statement shall be in the format as provided in Schedule III of the Companies Act, 2013 for different classes of the company.
Schedule III provides the general instructions for the preparation of the Balance Sheet and the Statement of Profit and Loss of a Company. It also provides general instructions for the preparation of the consolidated financial statements.
The form of financial statement of a banking company, an insurance company or a company engaged in the generation and supply of electricity shall be per the format provided in the specific acts governing these companies.
Format of Balance Sheet as per Schedule III of Companies Act, 2013
Name of the Company ………………………
Balance Sheet as at …………………………
(Rupees in…….)
Particulars
Note No.
Figures at the end of current reporting period
Figures at the end of previous reporting period
1
2
3
4
Equity and Liabilities Shareholders’ funds (a) Share capital (b) Reserves and surplus (c) Money received against share warrants Share application money pending allotment Non-current liabilities (a) Long-term borrowings (b) Deferred tax liabilities (Net) (c) Other Long term liabilities (d) Long-term provisions Current liabilities (a) short-term borrowings (b) Trade payables:- (A) total outstanding dues of micro enterprises and small enterprises; and (B) total outstanding dues of creditors other than micro enterprises and small enterprises. (c) Other current liabilities (d) Short-term provisions Total II. Assets Non-current assets (1) (a) Property, Plant and Equipment and Intangible assets (i) Property, Plant and Equipment (ii) Intangible assets (iii) Capital work-in-progress (iv) Intangible asset under development (b) Non-current investments (c) Deferred tax assets (net) (d) Long-term loans and advances (e) Other non-current assets (2) Current assets (a) Current investments (b) Inventories (c) Trade receivables (d) Cash and cash equivalents (e) Short-term loans and advances (f) Other current assets Total
Format of Statement of Profit and Loss as per Schedule III of Companies Act, 2013
Name of the Company ………………
Profit and Loss statement for the year ended …………….
(Rupees in ……………..)
Particulars
Note No
Figures as at the end of current reporting period
Figures as at the end of the previous reporting
1
2
3
4
Revenue from operation (I)
xxx
xxx
Other Incomes (II)
xxx
xxx
Total Income (I+II)
xxx
xxx
Expenses: (IV)
Cost of materials consumed
Purchase of Stock-in-trade
Changes in inventories of
xxx
xxx
Finished goods
work-in-progress and
xxx
xxx
stock-in-trade
xxx
xxx
Employee benefits expense
xxx
xxx
Finance costs
Depreciation and amortisation expense
Others expenses
Total expenses
xxx
xxx
Profit before exceptional and extraordinary items and tax (V)
xxx
xxx
Exceptional items (VI)
xxx
xxx
Profit before extraordinary items and tax (VII) = (V-VI)
xxx
xxx
Extraordinary Item (VIII)
xxx
xxx
Profit before tax (IX)= (VII-VIII)
xxx
xxx
Tax expense: (X)
Profit (Loss) for the period from the continuing operation (XI) = (VII-VIII)
xxx
xxx
Profit/(loss) from discontinuing operations (XII)
xxx
xxx
Tax expense of discontinuing operations (XIII)
xxx
xxx
Profit/ (loss) from discontinuing operations (after tax) (XIV)= (XII-XIII)
xxx
xxx
Profit / loss for period (XV) = (XI+XIV)
Earning per equity share (XVI):
Basic
xxx
xxx
Diluted
xxx
xxx
Presentation of financial statements
Presentation of financial statements by the board of directors
Section 129(2) of the Companies Act 2013 provides that the Board of Directors (BOD) shall present the financial statement for the year at every AGM of the company.
Consolidated financial statement
Section 129(3) further provides that the company has to prepare and present the consolidated financial statements of the company if the company has any subsidiary company (ies), associate company (ies), or joint-venture company (ies).
Along with the consolidated financial statement, the company has to attach the Statement containing salient features of the financial statement of all the subsidiary, associate, or joint-venture company(ies).
What is consolidated financial statement
A consolidated financial statement is a document reflecting the financial transaction and status of a business group. The assets, liabilities, revenue, expenses and capital of subsidiaries and joint ventures are to be clubbed with those of the parent or holding company.
Penalty
In case of contravention of the provisions of Section 129 of the Companies Act, 2013, the managing director (MD), whole-time director (WTD) in charge of finance, and the chief financial officer (CFO) shall be punished with imprisonment for one year or a fine of fifty thousand which may extend to one lakh rupees or both.
Approval of financial statements
Section 134(1) of the Companies Act, 2013 requires the approval of financial statements by the following persons
at least by one chairperson of the company where he is authorised by the board for that purpose, or
at least by two directors out of which one shall be the managing director and the chief executive officer (CEO) (if he is a director of the company), the CFO, and the company secretary (CS).
One person company
In the case of one person company, the approval is needed by only one director for its submission to the auditor for his reports thereon.
Filing of the copy of financial statements with the registrar of the company
Section 137 of the Companies Act, 2013 outlines the rules for filing a copy of financial statements with the Registrar. Sub-Section 1 of Section 137 empowers the Central Government to file the financial statements with the Registrar within thirty days of the date of the company’s annual meeting and the fee. Section 137(2) of the Companies Act, 2013 empowers the Central Government to prescribe the manner when the AGM had not been held, along with the reasons for not holding the AGM.
When the company has not adopted the financial statement in the AGM, in that case, the company shall file the unadopted financial statements along with the required documents within 30 days of the date of the AGM with the Registrars of the Companies.
The unadopted financial statement shall be deemed by the registrar as provisional till the financial statements are filed after their adoption.
Filing of financial statements adopted in the adjourned AGM
If the company has adopted the financial statements in the adjourned AGM, they should be filed with the registrar within 30 of such adjourned AGM.
Filing of financial statement when no AGM has been conducted
The company shall file the financial statements along with the registrar within 30 days of the last date before which the AGM shall have been conducted. The company shall also file a statement stating the facts and the reasons for not holding the AGM.
Filing of financial statements of OPC
The members of the OPC shall approve the financial statements and such statements should be filed with the Registrar within 180 days from the closure of the Financial Year. Section 96 of the Company Act, 2013 gives exemption to an OPC to hold an AGM.
Accounts of subsidiaries outside India (foreign subsidiary)
As per Fourth Proviso to Section 137(1), the company shall file the accounts of its subsidiary (ies) along with its financial statements which are incorporated outside India and which have no place of business in India.
The Section through Fifth Proviso further provides that if the financial statements of the foreign subsidiary are not required to be audited under any law, the requirement under the fourth proviso shall be accepted if the Indian holding company files such unaudited financial statements with such declaration. The Indian holding company should also file the financial statements of its foreign subsidiaries in English translation if the original is in any other language.
Penalty for the contravention of Section 137 of the Companies Act, 2013
Penalty for the company
When a company fails to file a copy of the financial statements with the Registrar under subsection (1) before the expiry of the period specified in Section 403 of the Companies Act 2013, the company shall be punishable with an amount of one thousand rupees per day during which the failure continues, but which shall not exceed ten lakh rupees. The period specified in the proviso to Section 403(1) of the Companies Act, 2013 is 270 days from the date on which the company should have filed the financial statements along with the additional fee.
Penalty for the company’s officer
The punishment for non filing of financial statements is provided in Section 137(3) of the Companies Act, 2013. The company’s officials are also punishable along with the company for non-filing the financial statement
with an imprisonment of up to six months, or
with a fine which shall not be less than one lakh rupee but which may extend to five lakh rupees, or
with both
Company officials liable for the punishment
The following officers are liable for penalty under Section 137(3) of the Companies Act, 2013.
The MD of the Company
The CFO of the Company
In the absence of the MD and the CFO,
Any other director who is charged with the responsibility of filing a copy of the financial statements of the company with the registrar and complying with the provisions of Section 137, and
In the absence of the MD, the CFO and any director entrusted with the responsibility,
all the directors of the company.
Companies (Filing of Documents and Forms in Extensible Business Reporting Languages) Rules, 2015
Filing of the financial statements with the Registrar
The following classes of the companies shall file their financial statements and other documents under Section 137 of the Act, with the Registrar of the companies in e-form AOC-4 XBRL(Extensible business reporting language) which shall be digitally signed by the director of the company who is specially authorized by the Board of Directors in this behalf, or manager of the company or the CEO, or the CFO, or secretary of the company along with the DIN (i.e., Director Identification number) or PAN (i.e., Permanent account number) of the manager, CEO or CFO, as the case may be for the financial year commencing on or after 1st April 2014 using the XBRL taxonomy:
All companies listed with any stock exchanges in India and their Indian subsidiaries; or
All companies having paid-up capital of rupees five crore or above; or
All companies having turnover of rupees hundred crore or above; or
However, companies in banking, insurance, power sector, non-banking financial companies (NBFC), and housing finance companies need not file financial statements in XBRL format under this rule.
Every NBFC defined in Companies (Indian Accounting Standards) (Amendment) Rules, 2016 to which Indian Accounting Standard (Ind AS) applies shall file the financial statements along with mandatory attachment as per e-Form AOC-4 NBFC within 30 days of the AGM.
Filing of the financial statements and the fees to be paid thereon
Every company shall file the financial statements with the Registrar together with Form AOC-4 and the consolidated financial statement, if any with Form AOC-4 CFS as per Companies (Accounts) Rules, 2014.
The company shall file the document in the XBRL format. XBRL is a standardized language for communication in the electronic form to report, express, or file financial information by the company. It ensures better and easier collection and better utilization of the data provided by the company.
Additional compliance for listed companies
As per Regulation 34 of the SEBI (Listing Obligation and Disclosure Requirements) Regulations, 2015, the listed company shall submit a copy of its annual report to the stock exchange on which it is listed, and shall also publish the same on its website. The date of submission and publication on its website shall not be later than the date of dispatch of the annual report to its shareholders.
Clause 2(a) of Regulation 34 states that an annual report consists of audited financial statements along with other documents.
Mandatory attachments under AOC-4
The company shall attach the following documents mandatorily along with the financial statement with the Registrar of the Companies:
Statement of subsidiaries in the format of Form AOC 1 given in Companies (Accounts) Rules, 2014,
Statement of fact and reason for not adopting the financial statements in the company’s AGM, in case the company is filing the unadopted financial statements,
Approval letter for extension of the financial year or an AGM, if any extension is granted,
Supplementary or test audit report under Section 143, if the Comptroller Account General of India (CAG) has conducted such test audit under Section 143,
Details of comment of CAG, if the CAG has conducted the test audit under Section 143,
Secretariat audit report, if applicable,
The Corporate Social Responsibility (CSR) policy of the company as prepared under Section 135 (4)
Details of other entity/entities (the implementing agencies), in case the company has not spent any amount of CSR directly,
Details of remaining CSR activities not mentioned in the e-form in a separate Excel sheet,
Details of salient features of the reasons and justification for entering into a transaction, contract, or arrangement with related parties under Section 188 (2) in the format given in Form AOC 2,
Director’s report as per sub-section (3) of Section 134 – if mentioned in Segment VI of the e-form.
Optional attachments for the companies
A consolidated financial statement of the company along with its subsidiaries/associates/joint ventures, in case the company has one or more subsidiaries/associates/joint ventures in Form AOC – 4 CFS.
Conclusion
The financial statements are crucial documents of a company. It enables the government and other stakeholders to keep a tap on the financial performance of the company. The financial statement comprises the Statement of Profit and Loss Account, the Balance Sheet, the Cash Flow Statement, and the notes supplementing the information provided in the above statements.
Frequently Asked Questions (FAQs)
What is the provision for filing the financial statement?
Section 137 of the Companies Act, 2013 provides for the mandatory filing of the financial statements with the Registrar of the companies.
What is the format for filing the financial statements?
The company has to file the document in the Extensible Business Reporting Language (XBRL) format. XBRL is a standardised language for communication in electronic form to report, express, or file financial information by the company.
What is the form for filing the financial statements?
The financial statements shall be filled as per Schedule III provided in the Companies Act, 2013.
What is the auditor’s report?
As per Section 134(2) of the Companies Act, 2013, it is mandatory to adduce the auditor’s report with the financial statements being filed with the registrar of the companies.
What is One Person Company?
One person company as defined in Section 2(62) of the Companies Act, 2013 is a company having only one member. It is a form of private company. The concept of one person company was introduced through the Companies Act, 2013. It gives the advantage of running a business by a single person along with enjoying the benefits of a company as an incorporated entity.
What is a dormant company?
As per Section 455 of the Companies Act, 2013, a dormant company is a company which is made for a future project or to hold an asset or intellectual property and has no significant accounting transaction or is an inactive company. An inactive company is a company which is not carrying any business or operations, or which has not many made any significant accounting transactions during the last two financial years or which has not filed a financial statement or annual report during the last two financial years. To acquire the status of a dormant company or inactive company, the respective company has to apply before the registrar of the companies in the prescribed format i.e. Form No. MSC 1.
What is a small company?
A small company as per Section 2(85) of the Companies Act, 2013 is a company whose total paid up share capital does not exceed 50 lakhs and whose turnover of the immediately preceding financial year does not exceed two crore rupees but which shall not exceed four crores and whose turnover does not exceed 10 lakhs, but which may extend to forty crores as prescribed by the Companies (Specification of definition details) Rules, 2014.
What is the accounting standard?
Accounting standard sets the standardized principles guiding the practices and policies of financial accounting. It provides uniformity in the financial statements and makes them more transparent. At the international level, Generally Accepted Accounting Principles (GAAP) were accepted by the Securities and Exchange Commission (SEC), United States of America to provide general guidelines for accounting and preparation of financial statements by the companies.
In India, the companies have to adhere to The Indian Accounting Standards ( Ind AS) made under Section 133 of the Companies Act, 2013. The copyright of Ind AS is vested in the Government of India.
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This article is written by Janani Parvathy J. It provides a legal analysis of the case Rupali Devi v. State of Uttar Pradesh. This article contains brief facts, issues raised, arguments by both parties, legal provisions involved in the case, the judgement by the court, and a brief analysis of the judgement. Alongside analysing the case, some sections of the IPC, CrPC, and Indian Evidence Act have also been discussed in this article.
Bench: Chief Justice Ranjan Gogoi, Justice Sanjay Kishen Kaul, and Justice L. Nageswara Rao.
Petitioners: Rupali Devi
Respondents: State of Uttar Pradesh and Ors.
Judgement date: April 9th, 2019
Facts of Rupali Devi v. State of Uttar Pradesh
In January 2014, Rupali Devi v. State of Uttar Pradesh came to appeal before a two-judge Bench, which further referred the case to a three-judge Bench in 2019. The facts of the case before the two Bench judges are:
Rupali Devi (appellant) was living with her husband (respondent 2) and their 4-year-old child in her matrimonial home, situated in Mau. Later, her husband started harassing her for dowry, due to which she was forced to leave her matrimonial house at Mau and shift to Deoria. Consequently, Rupali Devi lodged a complaint under Sections 489 A, 506, 313, 494, and Sections 3 and 4 of the Dowry Prohibition Act against her husband and his relatives. The chief judicial magistrate, Deoria, issued summonses to the respondents.
The husband challenged the allegations raised by the wife before the chief judicial magistrate by stating a lack of jurisdiction. The husband contended that the alleged acts of cruelty were committed at Mau and not in Deoria, and therefore, courts at Deoria had no jurisdiction to hear this case.
The Chief Judicial Magistrate ruled in favour of the wife and observed that an offence under Section 498A was a continuing offence and thus could apply to Deoria as well, where she had gone to take shelter from harassment by her husband. The Sessions Judge, to the contrary, observed that an offence under Section 498A is not a continuing offence, and therefore the court at Deoria cannot have jurisdiction when the alleged offence was committed in Mau. An appeal to the High Court also resulted in a similar decision. The High Court upheld the Sessions Court’s judgement and declared Mau to possess proper jurisdiction.
In 2014, the two-judge Bench observed that the precedents cited by both counsels were not only decisions given by the two-judge Bench of the Supreme Court but also displayed differing opinions. Further, they observed that the question at hand, i.e., the jurisdiction of courts in the parental house, was of utmost public importance. Additionally, the Court noted that it was a question that needed to be considered because the law surrounding it was unclear. Therefore, the case was referred to a three-judge Bench, including the then CJI (Justice Ranjan Gogoi), for adjudication.
Issues raised
The issues raised before the two-judge Bench and the three-judge Bench were the same. The issue raised was:
Whether a woman who was forced to leave her matrimonial house due to cruelty by her husband can file a case in court at the place she was forced to take shelter in?
Arguments of the parties in Rupali Devi v. State of Uttar Pradesh
Both parties, before the two-judge Bench, argued based on legal provisions and precedents. The arguments of both parties are as follows:
Petitioners
The counsel for the appellants pleaded that Sections 177 and 178 of the CrPC must be read liberally to ensure that a woman aggrieved by domestic violence or cruelty is not left without resorting to seeking justice. The counsel further argued that if Sections 177 and 178, which state that courts in the place where the offence occurred had the jurisdiction to hear the case, were interpreted strictly, it would vitiate the entire purpose of Section 498A. The counsel further emphasised that Section 498A was introduced to protect women from domestic violence inflicted by their husbands.
The counsel further argued that Sections 177 and 178 of the CrPC contain the term ‘ordinarily’, and this term ordinarily means that these Sections were to be used generally and cannot be strictly interpreted.
The counsel emphasised before the court that the objective of Section 498A was to eliminate evils such as cruelty by the husband. The counsel pointed out that acts of cruelty by the husband by demanding dowry or cheating upon the wife are a continuing offence, i.e., the offence continues even after changing places. The counsel further argued that a continuing offence, as the one at hand, must be tried under Section 178(c) of the CrPC.
The counsel also contended that the offence at hand could also fall under Section 178(b). Offences that have been partly committed at one place and partly at another, or committed at different places, are punishable under Section 178(b). Since, in the present case, the offence was a continuing offence, it can be concluded to have been performed in Mau and Deoria.
The counsel pointed out before the Court that it was observed in these cases that when there was a lack of an explicit act of cruelty performed by the husband or his relatives at the place where the wife had taken shelter, the same court cannot have jurisdiction to try this case because no offence was committed here.
The counsel further pleaded that, based on the decisions in the above-cited cases, it could be concluded that only those courts where the offence was committed shall have jurisdiction to try and investigate the case.
Laws discussed in Rupali Devi v. State of Uttar Pradesh
Section 498A IPC
Section 498A talks about cruelty inflicted on the wife by her husband or his relatives. Cruelty is defined under this Section to include any act that causes grave harm to the life, limb, and mental or physical health of a woman. Cruelty under this Section also includes acts that incite a woman to commit suicide. Section 498A further punishes the harassment of a woman over the non-fulfilment of any unlawful demand for property, goods, or money made by her husband or his relatives. The Supreme Court has held inManju Ram Kalita v. the State of Assam (2009) that the meaning of cruelty under Section 498A must be seen based on the circumstances and that petty quarrels cannot amount to cruelty. A punishment of up to three years, along with a fine payable, can be given under this Section.
Section 506 IPC
Section 506 of the IPC specifies punishment for the offence of criminal intimidation. Section 503 of the IPC defines criminal intimidation as an act where one person threatens to cause harm to the person, property, or reputation of another person with the object of forcing the other person to act on his desire and perform an act he is not legally obligated to do. Punishment for criminal intimidation could be imprisonment for 2 years, a fine, or both. For threatening to commit murder, grievous hurt, or the unchastity of women, the punishment can be extended to 7 years, with or without a fine.
Section 313 IPC
Section 313 of the IPC specifies the punishment for causing misscarriage without the consent of the women. Anyone who causes miscarriage of the women in bad faith and without the consent of the women can either be punished with imprisonment for life or with imprisonment for 10 years and a fine.
Section 494 IPC
Section 494 explains the act of bigamy. Bigamy is the offence committed when someone remarries while having an already existing wife or husband. Such a marriage is void. Any person who commits this offence shall be punishable with imprisonment for up to 7 years, along with a fine. Section 494 also includes some exceptions, which are:
When the marriage of either spouse has already been declared void by the court, then Section 494 will not be applicable.
When the spouse remarries, honestly believing that the first partner was dead, then an offence under Section 494 IPC is not committed. To attract this exception, it is necessary that a minimum of seven years have passed since the death of the first spouse.
Section 174 CrPC
Section 174 specifies the procedure to be followed by a police officer in the aftermath of the discovery of a suicide or unnatural death. It states that:
Following the discovery of a suicide or an unnatural murder, the police officer in charge is supposed to inform the local judge (district or subdivisional court).
The divisional judge shall then proceed to make an investigation and shall then prepare a report of the manner and cause of death and the bruises, wounds on the body.
If any doubt about the cause of death exists, if the case relates to the suicide of a woman within seven years of her death, or if it involves the death of the woman in suspicious circumstances, in all such cases, the officer-in-charge, if he deems fit, can send the body to the civil surgeon for further analysis.
This Section also specifies the magistrates who are allowed to conduct inquests.
Section 176 CrPC
Section 176 empowers the Magistrate to conduct an inquiry in cases of unnatural death to find out the cause of death.
An inquiry can be conducted by the magistrate when a woman has gone missing or when an offence of rape has been committed.
This Section also addresses the process to be followed if the body has already been cremated.
Sub-clause 5 also mandates the police officer to send the body to the nearest surgeon.
Section 177 CrPC
Section 177 of the CrPC specifies the ordinary jurisdiction of courts to hear and try cases. It states that ordinarily, the courts at the place where the offence was committed shall have the jurisdiction to hear, try, and inquire into cases.
Section 178 CrPC
The CrPC specifies some exceptions to the rule mentioned under Section 177. In some cases, a court other than the one where the offence occurred can be given jurisdiction, Section 178 lays down this exception. It specifies that
When the specific area of commission of the offence is unclear or when the offence is a continuing offence and the commission of the offence continues to another place;
When the offence was committed in parts in different areas;
In the above circumstances, a court other than the one in the local area can be given the jurisdiction to hear, inquire, and try cases.
Section 179 CrPC
Section 179 provides another exception for the rule laid down in Section 177 of the CrPC. It states that if the consequences of an offence committed at one place continue to the other place, the courts in the other area can also be given jurisdiction to hear, try, and enquire cases.
Protection of Women from Domestic Violence, 2005
To tackle the increasing number of domestic abuse cases, the Domestic Violence Act of 2005 was formed. This Act has five chapters and thirty-seven sections. Section three of the Act defines domestic violence as an Act that harms, injures, or threatens to injure the life, limb, safety, and well-being of a woman in the domestic household. It also extends to include any act that causes mental, physical, or emotional distress or harm to the woman. The Domestic Violence Act is the redressal path for such aggrieved women. A woman is entitled to receive civil remedies within 60 days of the complaint. Section 17 of the Domestic Violence Act gives aggrieved women a right to reside in a violence-free environment and away from their matrimonial house. The Act is also broad in scope to recognise emotional and mental harassment of women, and it covers both marriages and live-in relationships under the purview of a domestic relationship. The act also lays down the procedure for the aggrieved to claim monetary compensation, custody of the child, and termination of the marriage.
Dowry Prohibition Act, 1961
This Act was introduced to abolish the practice of giving, taking, or demanding dowry. The Act contains ten sections, through which it punishes the spouse or their relatives for asking for dowry. Section 2 defines dowry as a property or valuable security given by one party to another during the time of marriage. Section 3 of the Act specifies the punishment for taking, giving, or abetting someone to take or give dowry. According to Section 3, a punishment of a minimum of five years imprisonment and at least a fifteen thousand rupees fine or the compensation amount, whichever is higher, can be awarded. Section 4 of the Act punishes the act of demanding dowry. Demanding dowry directly or indirectly from the spouse, parents, or relatives of the partner is punishable with imprisonment for six months to two years along with a fine of ten thousand rupees.
Section 113A of the Indian Evidence Act
Section 113A specifies a presumption regarding the abetment of suicide of a wife. The ingredients of Section 113A are:
The wife must have committed suicide within seven years of the marriage.
The wife must have been subjected to cruelty by the husband or his relatives sometime before her suicide.
Section 113A states that if the above conditions are fulfilled, then it could be presumed that the husband or his relative abetted the suicide of the wife.
Judgement in Rupali Devi v. State of Uttar Pradesh
The issue before the court was whether a woman aggrieved by domestic violence can file a case against her husband under the court at her maternal home instead of the matrimonial home, where the offence occurred. The two judge Bench of Justice T.S. Thakur and Justice C. Nagappan were divided on their opinions; therefore, the case was referred to a three judge Bench consisting of the then Chief Justice of India (CJI Ranjan Gogoi). The three Bench of the Supreme Court ruled in the affirmative and granted relief to the aggrieved women.
Rationale behind this judgement
The three judge Bench of the Supreme Court analysed in detail: Y. Abraham Ajith and Ors. v. Inspector of Police, Chennai and Anr. (2004), Ramesh and Ors. v. State of Tamil Nadu (2005), Manish Ratan and Ors. v. State of Madhya Pradesh and Anr (2006), and Amarendu Jyoti and Ors. v. State of Chhattisgarh and Ors. (2006).The Court observed that in the above-mentioned cases, there were no allegations from the wife of domestic violence after shifting to her maternal home. The Court noted that only because of these special circumstances was it held in these judgments that the offence of harassment of a wife would not continue to the parental home and that the courts at the parental home lacked jurisdiction to hear cases under Section 498A.
Whereas, the court observed that in Sujata Mukherjee v. Prashant Kumar Mukherjee (1997), Sunita Kumari Kashyap v. State of Bihar and Anr. (2011), and State of M.P. v. Suresh Kaushal and Anr. (2003), a differing view was taken by the Supreme Court. However, the court also acknowledged the differing facts and circumstances of each case. In the Sujata Mukherji case, it was observed that the husband had continued the offence of cruelty even at the parental home, and therefore, it was held here that domestic violence was a continuing act under Section 178(c) of CrPC. In the Sunita Kumari case, the husband ill-treated the wife, left her at the paternal house, and further, in no manner, inquired about her and even refused to answer her calls. It was only because of these special circumstances that the court held in the Sunita Kumaricase that the offence also occurred at the parental home and that the court there would also possess adequate jurisdiction. In the Suresh Kaushal case, miscarriage was caused to the wife at her parental home as a consequence of being harassed by her husband at her matrimonial home. Therefore, the court observed that the court in the parental home shall have jurisdiction.
After analysing these two different sets of cases referred by the two judge Bench, the three judge Bench concluded that the facts and circumstances of the present case were different and that the referred cases could be used only in the special circumstances under which they were granted. The Court noted that the present case is where the act of violence was committed in the matrimonial house without continuing to the parental home, but where the legal proceedings were initiated from the parental house.
Further, the court noted that a reading of Chapter 3 of the CrPC, which deals with the jurisdiction of criminal courts in inquiry and trial, was needed.
The Court, after analysing Section 177 of the CrPC, pointed out that in ordinary situations, the court in the area where the offence was committed will have the requisite jurisdiction to hear trials. Further, the Court interpreted Sections 178 and 179 of CrPC, i.e., the exceptions to the ordinary rule under Section 177, and observed that the ordinary rule can be relaxed to provide jurisdiction to a court other than the one where the offence was committed, when the offence was partly committed in one area and partly in another, when the offence is the continuing one, or when the consequences of an offence committed at one place result in the commission of an offence at another.
For understanding a continuing offence, the court discussedState of Bihar v. Deokaran Nenshi (1972), where it was observed that a continuing offence needed to be distinguished from an offence committed once. It was observed that a continuing offence occurs when there is a failure to abide by a rule or its requirement. Here, the offence keeps continuing or recurring until this rule or requirement is complied with.
The three-judge Bench further observed that the present case had nothing to do with Section 178, the first exception, but instead it was necessary to determine whether the second exception under Section 179 could be invoked in this case. To answer this, the Court analysed the Statement of Objects and Reasons of Criminal Law (Second Amendment) Act of 1983, by which Section 498A was inserted. In simple terms, they wanted to understand the purpose of introducing Section 498A.
The Court pointed out that Section 498A of the IPC was introduced through the Criminal Law (Second Amendment Act, 1983). It also emphasised that, through the Second Amendment Act, Section 174, i.e., the inquiry of police into suicides, and Section 176 of the CrPC, i.e., the inquiry under the Second Amendment Act, 1983, were also amended. Additionally, Section 198A of the CrPC was also added through the Second Amendment Act. Further, the CrPC was amended to make the offence of domestic violence non-bailable and cognizable. Following this, Section 113A, which allows the inference that the wife was subjected to cruelty if she committed suicide within seven years of marriage, was added to the Indian Evidence Act.
The Court observed that the intention behind adding Section 113A was not only to deal with increasing suicides or grave injuries due to cruelty but also to deal with coercion of the wife or her relatives by demanding property or any other security. The Court observed that consideration of this purpose or objective was of great significance in the present situation, and the Court held that the purpose of the judiciary must be to make the Criminal Law (Second Amendment Act) more effective and efficient.
Further, the Court observed that ‘cruelty’ was the crux or the core matter of Section 498A. The Court referred to the Black’s Law dictionary’s definition of cruelty, which defines cruelty as the undignified and abusive treatment and infliction of mental or physical pain on any living creature. Cruelty includes both physical and mental trauma faced by women. The Court opined that the mental trauma inflicted on the women, forcing her to leave the matrimonial house and not returning back due to the fear of being ill-treated, formed an essential part of ‘cruelty’ under Section 498A.
The Court correctly observed that the mental, emotional, or psychological trauma the wife would face from the violence inflicted on her by the husband would persist even after leaving the matrimonial house and shifting to the parental house. The Court further observed that even in the absence of an explicit act of cruelty in the parental home, the mental trauma from the physical and verbal exchanges with the husband shall continue to mentally affect the victim even after shifting to her parental house. The Court further analysed the purpose of the Domestic Violence Act of 2005. The purpose of this Act was to provide a civil remedy for victims of domestic violence rather than a criminal law remedy, as already provided under Section 498A. The Court observed that the definition of domestic violence under Section 498A and the Domestic Violence Act both encompass mental, physical, and emotional harassment of the woman. It was further noted that even the silence of a woman could have an element of emotional distress.
Finally, in conclusion, the Court observed that the mental suffering of the victim of domestic violence shall persist even at the parental home, and these sufferings are a consequence of cruelty inflicted upon her by her husband at the matrimonial house. The Court observed that the mental suffering of the victim at the parental house as a consequence of the acts performed at the matrimonial house constitutes a distinct offence, which amounts to cruelty under Section 498A. The Court also observed that the consequences of domestic violence committed at the matrimonial home result in the commission of an offence at the parental home, as under Section 179 of the CrPC. Therefore, the three-judge Bench historically held that courts at places where the wife takes shelter on account of domestic violence meted out to her at the matrimonial home shall, based on the circumstances, have the authority to hear cases under Section 498A. Thereby, clearing all existing doubts on this matter.
Analysis of Rupali Devi v. State of Uttar Pradesh
Rupali Devi v. State of Uttar Pradesh is a case that made history by clarifying jurisdictional issues surrounding Section 498A. It answered the question of whether legal proceedings could be brought by the aggrieved women under Section 498A before the court at the parental house in the affirmative. The Court in this case interpreted the meaning of domestic violence under the Domestic Violence Act and Section 498A to include mental, physical, or emotional harm or distress caused to a woman in the domestic household. The courts, in this case, displayed the importance of performing a circumstantial and factual analysis before applying precedents.
The Court here observed that none of the precedents referred to here by the two Bench judges would be applicable because they were all related to specific facts. The Court also, in detail, analysed and explained Sections 178 and 179 of the CrPC. This case not only analyses the correlation between Section 498A and the Domestic Violence Act but also explains the purpose of the Criminal Law (Second Amendment), 1983. The Court’s analysis in this case stands out because of the importance it provides to the purpose and objective of legal provisions. This case, in detail, analyses the purpose of the Domestic Violence Act and Section 498A to conclude that mental harassment is a part of cruelty, and the same persists as a consequence even after shifting to the parental house. This case laid down that the statement of objective and reason of every statute play a very important role in interpreting the statute. It displayed the role that Statements of Purpose of an Act play in guiding judicial interpretations.
Conclusion
Domestic violence is one of the biggest menaces confronting Indian society. Section 498A and the Domestic Violence Act of 2005 enable the aggrieved to obtain criminal and civil remedies, respectively. However, it was Rupali Devi v. State of Uttar Pradesh, which held that legal remedy could be sought from either the court at the matrimonial place or at the place of shelter, depending on circumstances. The Rupali Devi case explains in detail the purpose of domestic violence prevention statutes in addressing the concerns of the aggrieved. The Rupali Devi case not only analyses provisions of the IPC but also the CrPC and the Indian Evidence Act. It utilises a different approach, the reading of the Statement of Purpose and Reasons, to resolve the existing differing opinions of courts on the jurisdiction of courts at the parental home under Section 498A of the IPC.
Frequently Asked Questions (FAQs)
Whether a case of domestic violence can be filed at the parental house?
Yes, legal proceedings can be brought even at the parental house, but the same depends on the circumstances. The same was held in Rupali Devi v. State of Uttar Pradesh.
Whether Section 498A includes mental harassment as well?
Yes, Section 498A of the IPC, which deals with domestic violence, includes acts of physical, mental, or psychological injury or harm inflicted on the wife.
What is the significance of the purpose of a statute in judicial decision making?
Statutes play a key role in interpreting them. They help guide the judges to make a fair decision. The same could be observed in the Rupali Devi case.
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This article has been written by Stuti Agarwal. The article enumerates everything a Gujarat Judiciary aspirant wants to know. It is your one-stop solution to learn about the syllabus, vacancies, application process, and other intricacies involved during the preparation of this coveted exam. You can also find some words of motivation and strategy building for the journey you are embarking on!
Table of Contents
Introduction
Gujarat Judicial Services Examination is one of the popular state judicial services examinations in India, with a huge number of interested candidates who take this examination. The exam is conducted for recruiting civil judges. The Gujarat High Court releases a notification for the conduct of the exam and rolls out the number of vacancies to be filled after the process of the examination. The candidates selected under this exam undergo a training process before holding their positions as judicial officers.
The competition in the Gujarat Judicial Services Examination is immense due to the number of aspirants who look forward to applying for the exam. If you are an aspirant of taking the Gujarat Judicial Services Examination, then this will be a one-stop solution to all the information regarding the exam and would solve all those queries that pop up to your mind while taking a career-building decision like giving a state judicial services examination.
Gujarat Judicial Services exam : at a glance
This year, the Gujarat Judicial Services Examination was undertaken pursuant to a notification released by the Gujarat High Court on 15.03.2023. The exam is conducted in three stages, in which a candidate moves to the next stage only on clearing each stage. To appear in the exam, the aspirants need to undergo an online application process. This year, the last date to apply for the examination was 14.04.2023.
The three staged Gujarat Judicial Services Examination comprises the (i) Preliminary Stage; (ii) Mains Stage; and (iii) Interview Stage. The Preliminary (Prelims) stage exam is a multiple choice answer pattern type objective paper and was held on 07.05.2023. This is an elimination round where the cut-off marks are declared and the candidates who clear the cut-off move to the next stage, i.e., the Mains (Mains) stage. The Prelims result was announced on 30.06.2023 and then the Mains exam was conducted on 02.07.2023. After the Mains stage, the candidates have to sit for an interview, which is the last stage to clear and get their dreams realised. The interview dates for this year have been declared to be held on the 6th and 7th of October 2023.
The candidates appearing for Prelims also have to pass a proficiency test in the Gujarati language. However, some candidates are exempted from such a proficiency test, as will be discussed in the further course of this article. The language test is considered as a barrier to taking this examination by some candidates not belonging to the state or not knowing the language, however, this is just a myth. It is very easy to learn the basics of Gujarati language to pass the proficiency test. A guide to learning the Gujarati language is also provided in this article. There is nothing which can come in the way of the goal you have for yourself, so let’s begin knowing the essentials of the Gujarat Judicial Examination through this article.
As we further indulge in knowing more about the Gujarat Judicial Services Examination, the first and foremost aspect we should check is the eligibility criteria for the examination.
A one-stop solution for your preparation for the Gujarat Judicial Services Examination can be opted for by checking a list of courses offered by LawSikho which includes classes, notes, mocks and problem-solving sessions for the aspirants to feel covered for their preparation all the time. Click here to schedule your course online and start a judicious preparation for your dreams to come true.
Let’s Go……!
Vacancies announced for 2023 Gujarat Judiciary exam
Vacancies in Judicial Services examination are a volatile concept. The first and the foremost determinant to know the actual competition in the examination is something which an aspirant comes to know once the number of vacancies are announced in the notification. Therefore, as you all would like to know, the number of vacancies announced for the 2023 edition of the Gujarat Judicial Services Examination is a total of 193 posts scattered into different categories as:
General
Scheduled Castes
Scheduled Tribes
Socially and Educationally Backward
Total Regular Vacancies
Differently Abled
7%
15%
27%
4% (Horizontal)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
98
14
29
52
193
8
The Notification issued by Gujarat High Court mentions the above stated existing as well as future vacancies for the Cadre of Civil Judges in the pay scale of Rs. 77,840/- to Rs. 1,36,520/- as per the Gujarat State Judicial Services Rules, 2005.
Vacancies released previously
In previous years, the trend of vacancies in Gujarat Judiciary has been as follows:
S. No.
Year
Number of Vacancies
1
2022
219
2
2019
124
3
2018
75
4
2017
129
5
2016
112
Eligibility criteria
As every competitive exam in India has a prerequisite eligibility criteria to fulfil, the Gujarat State Judicial Services Examination has it too. The aspirants need to qualify in age-wise as well as educational eligibility criteria. There are different criteria for candidates belonging to different categories. The categories recognized by the Gujarat Judicial Services Examination are General Category, Scheduled Caste, Scheduled Tribe, Socially and Educationally Backward Classes (declared by Gujarat Government), Differently Abled Persons (with locomotor disability of not more than 40%), Ex-servicemen and employees working in the Courts or other allied departments.
Requisite educational qualification
The common educational qualification required across all categories is as follows:
Law Degree: A bachelor’s degree in law is a prerequisite to appear in the Gujarat Judicial Services examination. It should be taken from a University recognized by law in India.
Gujarati Language Proficiency: The candidates are required to pass a Gujarati language proficiency test. However, certain candidates who have cleared their secondary as well as higher secondary examinations with the subject of Gujarati (higher level at both stages), are not required to sit for this proficiency test. They are exempted from giving this proficiency test vide Gujarat State Judicial Service (Amendment) Rules, 2019. Rule 7(2)(aa) was inserted in the aforementioned amendment of the said Rules mandated passing of such proficiency test and thereafter exemption as mentioned above was formulated in the form of a proviso. The original Rule 7(2) provided for certain requirements for eligibility, under which sub-clause 2(aa) was inserted by the 2019 amendment.
Advocate on Roll/ Working in Courts: The candidate is required to be a practising advocate in Courts of Civil or Criminal jurisdiction as of the last date fixed for submission of the Online Application. The implication of such a requirement is to possess Bar Association registration and procure the registration number. Furthermore, for the candidates who are law graduates of the 2009-2010 and onwards must have also passed the All India Bar Examination (AIBE) as an implication to be considered under the term “practising advocate”.
In the application process of this year, the High Court of Gujarat has allowed such candidates to fill their exam form for Gujarat Judicial Services 2023 if they have appeared for the AIBE and the result thereof is still not out. However, they need to provide a declaration to the effect that if in any case, such candidates do not pass their AIBE before the interview stage of the examination or the document verification stage, then the application of such candidates would stand rejected.
OR
The candidate must be working in the Courts or other Allied Departments as of the last date for submission of the application for the Gujarat Judicial Services Examination. Such candidates must also possess a degree in law i.e., an LL.B degree of 3 years law school program or 5 years law school program, from any recognized University in law.
Computer Knowledge: The candidates are also required to possess a certificate that certifies them to possess ‘basic knowledge of computer application/operation’ which should be issued by the Government of Gujarat in General Administrative Department Resolution No. PRCH-102005-1532-K, dated 30th September 2006 and Resolution No. CRR-10-2007-120320-G.5 dated 13th August 2008.
Requisite age limit
The age limit eligibility is different on the basis of categories to which a particular candidate belongs. The following table enumerates the age limit criteria in an easy-to-understand format:
Category
Age limit
General Category
Must not have crossed the age of 35 years (as of the last date fixed for the submission of online application form for appearing in this examination)Must not be born before 14th April 1988*
Scheduled Caste / Scheduled Tribe / Socially and Educationally Backward Classes (as recognized by Gujarat Government)
Must not have completed the age of 38 years (as of the last date fixed for the Submission of online application form for appearing in this examination)Must not be born before 14th April 1985*
Differently abled persons (with locomotor disability of not more than 40%
Must not have completed the age of 38 years (as of the last date fixed for the submission of online application form for appearing in this examination)Must not be born before 14th April 1985*
Ex-servicemen
Must not have completed the age of 38 years (as of the last date fixed for the submission of online application form for appearing in this examination)Must not be born before 14th April 1985*
Employees working in Courts or other Allied Departments**
Relaxation of 5 years (from standard 35 years of age) OR relaxation to the extent of equal number of years for which service has been put in by the candidate, whichever is LESS in the upper age limit.
Relaxation in the age limit
Any candidate across any category shall not surpass the age of 40 years as of the last date of submission of the exam form for Gujarat Judicial Services, i.e., 14th April 2023 this year. *However, as per a Resolution passed on 29th September 2022, the High Court of Gujarat has decided to grant an age relaxation of 1 year in the upper age limit in the recruitment process of this year i.e., 2023. Therefore, the upper age limit across categories shall be 41 years rather than 40 years.
The benefit of categories for the candidates belonging to the Scheduled Castes / Scheduled Tribes / Socially and Educationally Backward classes is provided only after the production of the relevant certificates for proving the eligibility for the same. The candidates seeking benefits under the Socially and Educationally Backward classes need to submit a ‘Non-creamy layer’ certificate, which needs to be valid for the Current Financial Year in which the exam is to be held. This certificate needs to be issued by a Competent Authority of the state of Gujarat.
The benefit of an upper age limit and fee relaxation sought by the candidates belonging to the Differently Abled Category with Locomotor Disability of not less than 40% also required the production of the requisite certificate which certifies the disability of the candidate.
To avail the benefit with respect to the upper age limit relaxation, ex-servicemen should produce a certificate / their identity card which certifies their claim.
**Allied Departments mentioned in the table above include the employees of the following departments:
High Court of Gujarat or any Court subordinate to it.
Office of the Government Pleader, High Court of Gujarat.
Office of the Government Pleader, City Civil Court, Ahmedabad.
Office of Legal Section of the Legal Department, Sachivalaya, Government of Gujarat, Gandhinagar.
Disqualification for appointment to the Gujarat Judicial Services
The notification for the Gujarat Judicial Services Examination specifically mentions the criteria which will lead to the disqualification of a candidate, even if such a condition surfaces or comes to the knowledge of the authorities after the candidate qualifies all the three above-mentioned stages successfully. These conditions are:
Foreign citizenship
It is a prerequisite that every individual candidate sitting for the examination must be a citizen of India. Therefore, if at any later stage it came to the knowledge of the authorities that a candidate is not an Indian citizen, then the candidature of such an individual shall get disqualified outrightly.
Dismissal from the government service
If any prospective candidate gets dismissed from service by Central Government, any other State Government / Union Territories, High Court or any statutory or local authority, then such a candidate is not eligible to be in the Gujarat Judicial Services.
Criminal record
If the prospective candidate has a criminal track record i.e., has been convicted of an offence involving moral turpitude or has been permanently debarred/disqualified by any High Court, the Union / State Public Service Commission or by any Recruiting / Examination conducting authority from appearing in examinations or any selection procedures.
Bribing the authorities
If the candidate tries to influence the Recruiting Authority by any means. Many people tend to give out their influential references and tend to use their so-called contacts in the administrative leg of the system, which can be said to be an example of some sort of ‘influence’ which is strictly prohibited.
Polygamy or polyandry
If the candidate, being a male candidate, has more than one wife living and being a female, has married a man already having another wife.
Selection is not a right!
Mere selection in the examination/name in the Selection List or Merit List cannot be a matter of right to join the Gujarat Judicial Services post. It is subject to the government’s satisfaction of suitability and verification of the identity of all the qualified candidates. The government conducts its own inquiries to satisfy itself of the suitability of the candidate for the prestigious post that judicial service offers.
How to apply for Gujarat Judiciary exam
After checking the eligibility as mentioned in above section of this article, the candidate must get an idea of how and where to apply for the coveted Gujarat Judicial Services Examination. The process of application is ONLINE only. The physical application process is not available for this examination. The candidates who have constraints and do not have access to the internet can reach out to a nearby internet café where they can fill out their form for Gujarat Judicial Examination easily. They must possess an active mobile number for the entire process for OTP and other alerts related to the process.
The candidates can find the form on the following websites:
Points to remember while filling out the application form
There is a prescribed format in which the application format has to be submitted. The following are the few important pointers that are to be strictly adhered to while filling the said form for applying to the Gujarat Judicial Services Examination:
Read the instructions
The candidates must fill in the fields shown when the form opens. Appropriate instructions must be thoroughly taken care of while filling out each field of the application form.
Save the details filled
After filling in the given fields, the candidate has to save the form by clicking on the ‘Save’ button visible on the portal.
Note the application number for future references
In the next window which opens after clicking on the ‘Save’ button shows the Application Number of the candidate indicating that the application form has been saved on the portal. The candidates must necessarily note the said visible Application Number for future references if required.
Review of filled-details
The next step is to preview the fields filled in before submitting to ensure that none of the details provided by the candidate are incorrect. Click on the ‘Show Application Preview’ button to preview the application form.
Upload necessary documents
The next step is to upload the documents required for the application. Such documents must be in the form of a file of a prescribed size and format. The Application No. and the Date of Birth filled by the candidate is used to upload:
Latest scanned photograph of the candidate
Scanned signature
Particulars of the files to be uploaded with the form
Every candidate applying for the Gujarat State Judicial Services Examination has to upload their scanned photograph and signature with the application form online. There are certain prerequisites which the candidates need to particularly follow with respect to the form of file in which the scanned photograph and signature are to be validly uploaded so that no error is raised, and your form is submitted without any hassle.
Please ensure that the photograph adheres to the following dimensions:
Serial No.
Particulars of Photograph
Required Dimensions
1
Length
5 centimetres
2
Width
3.6 centimetre
3
Size of file
10 KB (maximum)
4
Format of file
JPG format
Please ensure that the signature is of the following particulars:
Serial No.
Particulars of Signature
Required Dimensions
1
Length
2.5 centimetres
2
Width
7.5 centimetre
3
Size of file
10 KB (maximum)
4
Format of file
JPG format
Edit or confirm application
Before submitting the application form by clicking ‘Confirm Application’, the candidate must check each and every detail and each and every document uploaded. The candidate can also use the ‘Edit Application’ button before confirming their application by clicking on ‘Confirm Application’. No editing is permissible after clicking on the button ‘Confirm Application’, therefore, the application fields must be carefully checked by the candidates before confirming their application.
Confirmation number
After confirming the application by clicking on ‘Confirm Application’, the candidate’s application form gets submitted and registered. The candidate will then receive an SMS on their registered mobile number containing a Confirmation Number of their application for the examination. This ‘Confirmation Number’ needs to be noted by the candidates positively, as it is further used to download other related documents in the process in future.
Payment of the fee
The next step requires the candidate to pay the requisite fee for the form. The candidates can either pay the requisite fee online or can pay offline through cash. However, if the candidate selects the option to pay through the offline cash option, the challan therefore will be generated online only which will contain a date before which such cash payment needs to be made at any SBI branch by the candidate.
The application of the candidate will be valid only after the requisite payment of the fee through either of the two modes stated above.
The fees for the Gujarat Judicial Services Examination application form also vary as per the categories mentioned and recognized for the process. The following table shows the requisite fees to be paid by candidates belonging to different categories:
Categories
Fees
General Category
INR 1000/- (plus bank charges)
All other categories (as discussed above)
INR 500/- (plus bank charges)
Fee receipts generated after payment of the requisite fee must be preserved by the candidates for future references, if any.
Hall ticket
The candidates get an ‘e-Call-Letter-cum-Admission Slip’ from the Recruiting Authority which is the medium for the candidates to enter the exam hall after having successfully submitted the application for the Gujarat Judicial Services Examination. The candidates can download their ‘e-Call-Letter-cum-Admission Slip’ from the Gujarat High Court website or HC-OJAS Portal by using their Application No., Confirmation No. and Date of Birth.
NOTE- It is advisable to preserve a printed physical copy of the form for any use in future.
The details which the admit card of the Gujarat Judicial Services essentially contains are:
Name of the candidate
Gender
Category of the candidate
Roll Number
Photograph and signature as uploaded by the candidate in the application form
Exam Date
Centre of Examination
Duration of examination
Reporting time of the examination
Other instructions to be followed on the examination day
Stages of Gujarat Judicial Services examination
As briefly mentioned earlier, the Gujarat State Judicial Services examination undergoes three stages.
Gujarat Judiciary Prelims
The Prelims stage of the Gujarat Judicial Services Examination is the elimination round for the recruitment process. This year, the Prelims was conducted on 7th May 2023. This stage consists of two papers i.e., Paper – I and Paper – II. Paper – II is the Gujarati language proficiency test to be taken by the non-exempted students. Non Exempted students are the candidates who have not cleared their secondary as well as higher secondary examinations with the subject of Gujarati (higher level at both stages) and are, therefore, required to sit for this proficiency test.
Syllabus for Prelims: Paper – I (Law Paper)
The Prelims Paper – I, consisting of 100 questions as per the last Gujarat Judiciary Paper conducted, and it is divided into three parts. This paper is divided into three Parts.
The syllabus for each part i.e., Part – A, Part – B and Part – C, has been elaborately mentioned (Part wise below) in the latest exam notification released, i.e., for the exam conducted for the year 2023. The basic purpose behind such a division is to segregate the syllabus of the Prelims in a streamlined manner and make it easier for the preparation. There is no other purpose of such a division.
Syllabus for Prelims Part – A of Paper – I
The syllabus for Part – A of Paper – I contain the laws, which form the basics of the examination and will help the candidate in other stages of the examination too. The laws contained under the syllabus of this Part are both central laws (13) and the local laws (2) of the state. These laws are mostly criminal in nature and are as follows:
Central Laws:
The Indian Penal Code, 1860
The Code of Criminal Procedure, 1973
The Indian Evidence Act, 1872
The Probation of Offenders Act, 1958
The Juvenile Justice (Care and Protection of Children) Act, 2015
The Protection of Women from Domestic Violence Act, 2005
The Immoral Traffic (Prevention) Act, 1956
Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
The Negotiable Instruments Act, 1881
The Registration of Births and Deaths Act, 1969
The Protection of Children from Sexual Offence Act, 2012
The Information Technology Act, 2000
The Indecent Representation of Women (Prohibition) Act, 1986
State Laws
The Gujarat Prohibition Act, 1949
The Gujarat Prevention of Gambling Act, 1887
A few of these Central laws have already been a major part of your law school curriculum. There are 2 local state laws included in the syllabus of Part A of Paper – I and a total of 13 central laws. So, even though it looks voluminous, the future judicial officers are well capable of pulling this off. Do not panic by the long list of Part-A as the determination of being a judicial officer isn’t so weak, right?
Syllabus for Prelims Part – B of Paper – I
Part B mostly contains the Central laws (12) which have been a non-dispensable part of our law school curriculum already. It also contains one local law. These laws will seem familiar to you, as they are the building blocks of the law school journey. These laws are mostly civil in nature:
Central Laws:
The Code of Civil Procedure, 1908
The Limitation Act, 1963
The Indian Contract Act, 1872
The Constitution of India
The Indian Partnership Act, 1932
The Specific Relief Act, 1963
The Sale of Goods Act, 1930
The Transfer of Property Act, 1882
The Arbitration and Conciliation Act, 1996
The Commercial Courts Act, 2015
Succession Laws, Personal Laws of Hindus, Muslims, and Christians
Legal Maxims
Local Laws:
The Gujarat Court Fees Act, 2004
Syllabus for Prelims Part – C of Paper – I
General Knowledge
English Language
Reasoning
Numerical and Mental Ability
Basics of Computer Applications
Syllabus for Prelims: Paper – II (Language Paper)
The syllabus for Prelims Paper – II, consisting of 50 questions as per the last Gujarat Judiciary Paper conducted, is for testing the candidate’s proficiency in the Gujarati language. The syllabus for the same is given in the notification released for the exam in Gujarati language. It enumerates the syllabus as follows:
Gujarati essay writing
Gujarati comprehension, i.e., answering the questions as per the paragraph/comprehension given
Synonyms (In Gujarati Language)
Antonyms (In Gujarati Language)
Letter writing (In Gujarati Language)
Translation questions, i.e., translation from English to Gujarati and from Gujarati to English
Writing skill testing, i.e., writing a short note on any subject in Gujarati Language
Grammar (of Gujarati language)
The other important parameters for the Prelims stage are hereinafter mentioned in the tabular form for the ease of your reference:
Prelims particulars
Number of papers
Paper – I (based on an elaborative syllabus as discussed in the course of this article)Paper – II (Gujarati language proficiency test, ONLY for non exempted candidates)
PAPER – I
Maximum Marks
100
Duration of exam
2 Hours
Type of exam
Objective Type
Language of exam
English
Number of sections
3
Type of questions
Multiple Choice Questions
Marks per question
1 mark awarded for each correct answer
Negative Marking
Yes, 0.33 marks deducted for each wrong answer marked
Mode of exam
OMR based
PAPER – II
Maximum Marks
50
Duration of exam
1.5 Hours
Type of exam
Objective Type
Language of exam
Gujarati
Type of questions
Multiple Choice Questions
Marks per question
1 mark awarded for each correct answer
Negative Marking
Yes, 0.33 marks deducted for each wrong answer marked
Gujarat Judiciary Mains
This year, the Mains exam of the Gujarat State Judicial Services Examination was held on 2nd July 2023. It is a descriptive type exam conducted by dividing it into two papers. But before moving to the syllabus of each paper conducted in Mains examination, it would be crucial to note the eligibility criteria to give the Mains examination.
Eligibility for moving to the Mains stage
A candidate sitting for the Prelims (Paper – I and Paper – II OR only Paper – I, as per the case of exemption) is eligible for the next stage of Gujarat Judicial Services Examination only if:
(i) the candidate scores minimum 50% marks in the Prelims Paper – I; and
(ii) the candidate scores minimum 40% marks in Paper – II (for the students who sit for this exam because of not being exempted).
Syllabus for Mains: Paper – I
The Mains Paper – I is one of the two papers conducted under the Mains stage. There are almost same set of criminal laws as was in Prelims Paper – I (Part – A) but only the types of questions change from multiple choice objective questionnaire to subjective long answer type questionnaire. The law subject for the Main Paper – I are mentioned below:
The Indian Penal Code, 1860
The Code of Criminal Procedure, 1973
The Indian Evidence Act, 1872
The Gujarat Prohibition Act, 1949
The Probation of Offenders’ Act, 1958
The Juvenile Justice (Care and Protection of Children) Act, 2015
The Protection of Women from Domestic Violence Act, 2005
The Gujarat Prevention of Gambling Act, 1887
The Immoral Traffic (Prevention) Act, 1956
Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
The Negotiable Instruments Act, 1881
The Registration of Births and Deaths Act, 1969
The Protection of Children from Sexual Offence Act, 2012
The Information Technology Act, 2000
The Indecent Representation of Women (Prohibition) Act, 1986
Syllabus for Mains: Paper – II
The syllabus for Mains Paper – II is the same set of civil laws as was in Prelims Paper – I (Part – B). However, the type of questions change from multiple choice questions to subjective long answer type questions. The laws for Mains Paper – II are as follows:
The Code of Civil Procedure, 1908
The Limitation Act, 1963
The Indian Contract Act, 1872
The Constitution of India
The Indian Partnership Act, 1932
The Specific Relief Act, 1963
The Gujarat Court Fees Act, 2004
The Sale of Goods Act, 1930
The Transfer of Property Act, 1882
The Arbitration and Conciliation Act, 1996
The Commercial Courts Act, 2015
Succession Laws, Personal Laws of Hindus, Muslims, and Christians
Legal Maxims
Other important parameters for the Mains stage are hereinafter stated in a tabular form for the ease of your reference:
Mains particulars
Number of papers
Paper – I (based on an elaborative syllabus of Criminal Law, most laws are same as that of Prelims Paper – I Part – A syllabus)Paper – II (based on an elaborative syllabus of Civil Law, most laws are same as that of Prelims Paper – I Part – B syllabus)
PAPER – I
Maximum Marks
100
Duration of exam
3 Hours
Type of exam
Subjective Type
Language of question paper
English
Language of answer
English / Gujarati (if not instructed otherwise)
Type of questions
Long Answer Type
PAPER – II
Maximum Marks
100
Duration of exam
3 Hours
Type of exam
Subjective Type
Language of question paper
English
Language of answer
English / Gujarati (if not instructed otherwise)
Type of questions
Long Answer Type
Interview
The interview (Viva – Voce) stage of the Gujarat Judicial Services Examination is the last of the stages of the examination process. This year, the interview calls for the selected candidates has not yet been declared, but is expected to take place between the months of October and November. Following are the particulars for the Viva – Voce stage:
Viva – Voce particulars
Maximum Marks
50
Type
Oral
Eligibility for moving to the Interview (Viva – Voce) stage
There is a minimum score prescribed in the notification for Gujarat Judicial Services Examination – 2023 which a candidate needs to score to be eligible for the Viva – Voce stage of the examination. The following table shows the minimum required marks in the Mains stage, across different categories, to advance to the Viva – Voce stage:
Categories
Minimum Marks required in Mains
Scheduled Castes / Scheduled Tribes
45% marks minimum
All other categories
50% marks minimum
NOTE: All the candidates, irrespective of the categories, require minimum 40% marks in each paper.
Eligibility for moving into the interview: In the notification for the Gujarat Judicial Services Examination, it is quoted that:
“Sub-rule (1) (i) of Rule 11 of the Gujarat State Judicial Service (Amendment) Rules, 2014, since ‘character’ and ‘suitability’ of a candidate holds an important and paramount place for being considered for appointment to the State Judicial Service, therefore, kindly note that, these aspects can be inquired into, by the Competent Authority, prior to the Viva-Voce (Oral Interview) as per Annexure – ‘A’:”
Annexure – ‘A’
This is the kind of form which enumerates the fields upon which more detail regarding the ‘character’ and ‘suitability’ of a candidate can be inquired about, before the Interview stage. (as mentioned under the notification for Gujarat Judicial Services Examination 2023):
Whether the Candidate lives beyond his known means of income? If yes, please mention specific details in support of your opinion. (Please attach the documents, if any).
Whether he mixes with such persons as he should not? If yes, please mention specific details in support of your opinion. (Please annex the documents, if any).
Whether any adverse report / complaint doubting integrity of the candidate in relation to the cases attended by him is received? If yes, please mention specific details and its outcome, in support of your opinion. (Please annex the documents, if any.)
As a Competent Authority if you have learnt about doubtful integrity of the candidate from any other source, please mention the specific details in support of your opinion (Please annex the documents, if any.)
If the Competent Authority has no knowledge of the above facts, it may inquire from the source like (i) Judicial Officer at Taluka level, (ii) Head of the Department in which the candidate is serving, (iii) concerned Bar Council giving details of complaint, if any, received against the candidate, and submit the specific details as indicated above.
In addition to what is stated above, the Competent Authority must mention the specific details of adverse remarks, if any, departmental inquiry, if any, whether pending or concluded, in relation to the integrity of the candidate, supported by necessary material.
The above written details of the candidate are required by the authorities along with the following details:
Name of the candidate
Mentioning whether the candidate is an advocate / employee
Place of employment (if any)
Place of practice (if any)
Skill needed to pass the interview
The interview stage is conducted to judge the candidate for their knowledge of law, ability to answer the questions promptly, presence of mind, logical prompt responses, communication skills, characteristics of the personality, intellectual capacities, judgement skills in a prompt manner, clarity of speech and ethics.
Knowledge of Law:
The knowledge of law is as per the syllabus specified for the written stages of the examination. Not only this, the latest legal affairs should also be known to the candidate, as this can also be a probable question in the Interview stage.
Ability to answer the questions promptly:
The questions put up in the Interview stage must be answered by the candidate promptly without sounding hesitant or under-confident. It is understandable that a person can be nervous during such a big day in their lives, however, the art of presenting oneself confident despite it is what is required and what gains brownie points despite the correctness in ones’ answers.
Presence of mind:
There are some questions which test the presence of mind of the candidate regardless of their knowledge on any subject. They are trick questions which are asked by the panel to check how a candidate handles pressure and how they handle stressful situations confidently without showing their discomfort or nervousness.
Logical and prompt responses:
Interview stages are held to mark a candidate on their ability to answer questions promptly with logic. Sometimes, in order to be prompt in responses, the person loses the logic in the answer which should be taken care of by the candidates.
Communication skills:
Judging the level of communication skills is the foremost objective of the Interview stage. Holding a communication is an art which is not a natural nature of every individual. However, this art needs to be learnt for the preparation of any interview stage. The interviewee should hold a skill to engage the panel in their conversation in such a manner so that they can lead the panel to the type of next question according to their own inclination. Inculcating such skills helps the candidate to ace the Interview stage.
Characteristics of the personality:
The manner in which a person holds a conversation speaks volumes about his / her personality traits. Therefore, working on the skill of engaging in a conversation in such a manner which brings about a good personality in front of others is a major determinant in gaining good marks in this stage.
Intellectual capacities:
There is a difference between a normal conversation and an intellectual conversation. A person can be an intellectual and know a lot about his / her subject, however, not everyone knows how to present that side in front of others. Bringing about your intellectual side in front of the target audience is a skill which needs to be developed and which helps in the Interview stage to gain good marks. This does not mean that a person needs to spill out academic terms or fancy words, but to hold a meaningful and tight conversation on the question asked without beating around the bush like someone who is under-confident or sounds like he / she has less knowledge about the question asked.
Judgement skills:
The candidate who sits for the interview stage needs to possess a strong skill of judgement. The candidate should be able to judge the objective of the question put, and should accordingly answer. Interviews for the post of a Judge always require having a strong sense of judgement as to why a question is asked, which helps to present the answer in accordance with the same.
Clarity of speech:
The way a candidate speaks is the first and the foremost impression which is formed in the minds of panellists. Therefore, the speech should be clear and confident, which breeds no grounds of confusion in communicating the intent of what the candidate is trying to communicate through his / her answers.
Ethics:
Politeness, choice of words, salutation, tone etc. depict the ethics which a candidate possesses. The candidate should never interrupt in between a question put up. The candidates should patiently listen to the question without jumping to answer. Never look eager and excited to answer a question, even when you know the answer fully. This gives a very negative impression and loses the impression of one’s personality. The conduct of a candidate must be ethical and soft throughout the interview.
Questions that can be asked from the legal field are academically inclined and out of the syllabus specified for the written stages of the examination and also the current affairs in the legal field which the candidate needs to update himself / herself with during the preparation for this stage.
Documents in physical form
The Gujarat High Court calls for the additional document verification of the candidates selected for the Viva-Voce stage. The documents called for are as follows:
Print out of the application form that was filled out online.
Passport size coloured photograph of the candidate that should be freshly taken i.e., should not be old.
Original along with one self-attested / true copy of the following:
School Leaving Certificate / Birth Certificate issued under the Birth & Death Registration Act.
Certificates of each stage of Educational Qualification, including Class 10th, Class 12th, Graduation (all years), Post Graduation (if any) etc.
Sanad issued by the Bar Council of the State.
Certificate issued by the Bar Council of India after passing of the AIBE. However, it is replaced by the undertaking (as already discussed above) for the candidates whose result of the AIBE is under process.
Certificates indicating to possess ‘Basic Knowledge of Computer Application / Operation’ issued by the Government or other recognized Institute, as set out by the Government of Gujarat in General Administrative Department Resolution No. PRCH 1020051532K, dated 30/09/2006 and Resolution No. CRR102007120320G.5 dated 13/08/2008
Certificates validating the categories under which candidates have applied i.e., certificates issued by competent authorities for certifying the candidates belonging to the Reserved Categories (Scheduled Castes / Scheduled Tribes / Socially and Educationally Backward).
Candidates belonging to the Socially and Educationally Backward classes should also produce their ‘Non-creamy Layer Certificate’ of the Financial Year under which such an application for appearing in the judicial services is submitted.
Candidates in the category of ‘Differently Abled’ need to submit a certificate issued by a competent authority certifying that the candidate is not less than 40% disabled. They are also required to submit a certificate issued by the Standing Medical Board at Ahmedabad certifying that the said candidate has an ability to perform the duties of the post in question.
In case any candidate went through a name or surname change, which is different from the identity documents submitted then they also need to show the Government Gazette.
Original certificates procured from two references of professional and dignified stature in the society, unrelated to the candidate i.e., such references should not be their relatives or belong to the candidate’s college or university, must be submitted. Such a certificate shall not be more than 6 months older than the date fixed for the interview stage.
Original practice/experience certificate issued the following as per the relevant case applied to the respective candidates (in the format provided in the notification):
The Secretary General of the Supreme Court of India or any other Officer authorised by him in case of Advocates practising in the Supreme Court of India.
The Registrar General or equivalent authority of the respective High Court, in case of the Advocates practising in the Courts outside the state of Gujarat.
The Registrar General, High Court of Gujarat, in case of Legal Assistants / Law Clerks working on the establishment of the High Court, on contractual basis.
The concerned Principal District Judge of the District, in case of Advocates practising in District Court and/or Taluka Courts of the District concerned, in case of the Advocates practising in the Courts in the State of Gujarat.
The concerned Principal Judicial Officers of the Courts in the city of Ahmedabad, in case of Advocates practising in the City Courts at Ahmedabad, as may be applicable.
In case of Assistant Public Prosecutor or Public Prosecutor / Assistant Government Pleader, the Certificate shall be issued by the Authority being the Principal Judicial Officer heading the establishment/institution concerned, in consultation with the authority of the respective establishment as the case may be.
The concerned Head of the Department, in case of ‘Employee of Allied Departments’.
In case of Advocates, the Certifying issuing Authority shall collect the information as to whether the candidate is practising independently or with any Senior Advocate. If Practising with any Senior Advocate, the name & contact number of such Senior Advocate along with the data related to the number of cases in which the candidate appeared as an Advocate etc. Whereas, in the case of staff members, the Certificate issuing Authority shall furnish information in detail about the period of service as a regular or ad-hoc employee.
Points to remember in the Interview Stage
The interview stage during any exam/job is always to judge the personality of the candidate along with their demeanour and presentation. Therefore, giving the best first impression should always be the focus in such oral rounds. Following are some important points to keep in one’s mind when going for the interview for the Gujarat Judicial Services Examination:
The candidates should make sure that they dress well for the interview. A well-dressed candidate leaves a positive first impression on the interviewers, which gives a good start to the interview.
The candidates should positively keep in mind that they should present themselves during the interview confidently. The candidates must answer the questions put up to them, making a confident eye contact with the panellists. However, there is a very thin line between confidence and arrogance, which can make or break the impression of a person to the interviewer.
The candidates should never try to dodge a question asked by the interviewers because that gives a very bad impression and communicates that the candidate is trying to get away with a question slyly.
The interview is not only about testing a candidate’s knowledge, but it is to judge a candidate’s presence of mind and the demeanour to take up a question to which the candidate doesn’t know the answer of. The way an interviewee handles a question of which he isn’t aware of the correct answer is a major point which is evaluated during this stage.
The mannerisms and gestures of a candidate are also evaluated during the interview stage. Biting of nails, touching your face, looking up while answering, avoiding eye contact, and shaking legs are a few of the many small actions which communicate nervousness to the interviewers and must be AVOIDED.
It is natural to get nervous or feel anxious before the last stage of such a big examination, knowing that the particular stage can make or break the hard work of so many months to achieve the goal. But the talent to avoid the communication of your nervousness and anxiety to the panellists before you is what is tested in the interview of such a prestigious exam and post you are about to hold.
Post-interview selection process
After giving the interview, the candidates await for the final list of selected candidates, which is rolled out on the HC-OJAS Portal by the Gujarat High Court. There is no standard time for releasing the final list after the interview. The eligibility of getting selected in the final list and the procedure to check the result are covered under this section as follows:
Eligibility to get listed in the final selection list
The candidates who reach the interview stage are required to score at least 40% marks out of the maximum marks prescribed i.e., 50 marks which is 20 marks.
How to check the results
The results of all the stages of the Gujarat Judicial Services Examination are made available on the Gujarat High Court website as well as on the HC-OJAS Portal via a link to the portal. If it is to be made available on any other website / portal, it will be duly informed by the Gujarat High Court as the case may be.
Individual One Time Passwords (OTPs) are given on the SMS of a particular candidate in order to open the result of the candidate.
Selections across categories
As this year there are 193 vacancies for the post of Civil Judge, the selections across categories will be distributed as follows:
General
Scheduled Castes
Scheduled Tribes
Socially and Educationally Backward
Total Regular Vacancies
Differently Abled
7%
15%
27%
4% (Horizontal)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
98
14
29
52
193
8
Disputing the results
The notification for the Gujarat Judicial Services Examination enumerates a detailed procedure to know one’s marks after the declaration of the results. If a candidate undergoes a process of obtaining marks by filing an application under the Right to Information Act, 2005 (RTI Act), the following procedure must be followed:
The notification for the Gujarat Judicial Services Examination enumerates a detailed procedure to know one’s marks after the declaration of the results. If a candidate undergoes a process of obtaining marks by filing an application under the Right to Information Act, 2005 (RTI Act), the following procedure must be followed:
The Candidate needs to apply to the Public Information Officer, High Court of Gujarat, Administrative Building, Sola, Ahmedabad – 380060, along with the requisite fees.
No person can apply for the same on behalf of the candidate, i.e., the candidates need to file the application under their own names only. Section 8(j) of the RTI Act enumerates that marks of a particular candidate cannot be supplied to a third party/candidate or anyone for that matter.
The marks shall be declared under this process only after the conduct of the whole procedure, i.e., after the declaration of the final results. For example, the marks sought for the Prelims stage will only be disclosed after the declaration of the final result.
The process is helpful for candidates who wish to know the marks obtained by them as the marks of unsuccessful candidates are not published publicly, they are just not included in the merit list/selection list.
In any case, marks sought under this procedure, irrespective of the stage of the exam of which the marks are sought, will only be communicated upon application under this process only after the final merit list is out and published on the internet.
Production of bond
The Gujarat state Judicial Services Examination requires the candidates on their Regular Appointment to execute a ‘Bond’ for a sum of INR 5,00,000/- (Indian Rupees Five Lakhs only) regarding their commitment to continue the service for a minimum period of 3 (three) years (excluding the training period) after the training is completed. However, in the event the candidate leaves or resigns from the service before this period, for whatsoever reason, such a bond executed will then be forfeited.
Remuneration
The pay scale of the Judge after qualifying for the Gujarat Judicial Services examination is of Rs. 77,840/- to 1,36,520/- as provided in the notification for the Gujarat Judicial Services Examination, 2023.
Promotions
Promotions in the Gujarat Judiciary are undertaken as per the Gujarat State Judicial Service Rules, 2005. Rule 5 of the said Rules enumerates the Promotion of Senior Civil Judges to the Cadre of District Judge. It mentions that 65% of the seats in the District Judge post be filled in from the Senior Civil Judge post on the basis of the principle of merit cum seniority basis and upon passing a suitability test for the same. There has been a recent dispute (in the case of Ravikumar Dhansukhlal Maheta case) with respect to the selection procedure for such promotions in the Gujarat Judicial Services, wherein the list of promoted candidates was stayed by the Hon’ble Supreme Court.
Dos and Don’ts in the exam centre
The candidates should carry an identity proof document for verification at the examination centre for all the three stages. It is advisable to carry either the Aadhar Card / Election Card / Card issued by the Bar Council of State / PAN Card / Driving License in ORIGINAL along with ONE COPY of the document you choose to carry.
The candidates should carry a physical copy of the ‘e-Call-Letter-cum-Admission Slip’ i.e., the admit card known in the common language.
The candidates should strictly not carry any electronic gadget to the examination centre including Mobile / Cell phones, tablets, laptops, smartwatches or any other electronic gadget for that matter. Carrying these gadgets can lead to the candidate’s disqualification under ‘unfair practices’ / ‘copying’ / ‘misconduct’ / ‘tampering with question paper’ etc. this cannot only lead to prohibition of the candidate in that particular stage of examination in which such electronic gadget was sneaked in, but can be debarred from as far as stages or can even be debarred for some particular number of years (or even permanently) from giving Gujarat Judicial Services Examination. The decision of the Gujarat High Court will be final in this regard.
Starting Gujarat Judiciary preparation : thought and the determination
When a student decides to appear for a competitive exam, the thing they need the most is courage and belief. A strong mind is a sine-qua-non for the process of preparation for judiciary exams. You will be surrounded by a lot of people who will question your attempts, you will be tempted by your earning friends, some will make fun of you and some will advise you to move on and take up another career alternative. Amidst all this and to deal with all this, all you require is SELF-BELIEF. You can make others believe in you only after you start believing in your own self. Thus, before indulging into the tangible preparation for the Gujarat Judicial Services Examination, you need to prepare for the intangible mental strength and determination.
There is no standard timeline for all the aspirants to start the preparation for this examination. It varies from person to person, their calibre, their retention capacity, mental ability and time taken to grasp a concept. However, seeing the voluminous syllabus, it is advisable for the aspirants to start their preparation right from the law school.
Tips and tricks for preparation of the Prelims stage
The Prelims is the stepping stone to the prestigious judicial services. Though it is a multiple choice question type question paper, the candidates should never prepare for Prelims with a narrow mindset.
Focus on bare acts
The candidates must focus on the bare acts of the statutes mentioned in the syllabus. This is because there are various questions in the MCQ-type preliminary stage of the examination which are asked directly from the bare acts. The reading of a bare act helps candidates to learn about the provisions, section numbers and other minute details regarding a provision which is easy to ask in an MCQ-type question paper.
Attempt questions keeping in mind the negative marking
A candidate must try to answer more and more questions in the Prelims stage, keeping in mind the negative marking in this stage of Gujarat Judicial Services Examination. Smart choices need to be made by the candidates and the random guesses without any reasonable justification for the same need to be avoided.
Elimination method in answering questions
Candidates attempting the Prelims stage of the Gujarat Judicial Services Examination can make use of the elimination method to help them answer more questions in an intelligent manner by avoiding chances of getting their marks cut due to negative marking. The elimination method is one such technique which helps the candidates to eliminate the options in a MCQ question by reasoning and thereby arriving at a suitable correct answer in the event the correct answer is not known by the candidate.
Don’t panic
When a person starts preparation for a voluminous competitive exam which has an ocean of academic material as its syllabus, a person is bound to come under pressure and panic. However, make achievable targets, reward yourself on achieving those targets and gradually increase the intensity of those targets. Give yourself regulated time to relax and undertake any activity which brings happiness and calms the mind. This way, you will not feel the preparation to be hectic.
Don’t prepare with the mindset of a particular stage
Always keep in mind that you WILL get selected for the Prelims. By looking at the date sheet of the Gujarat Judicial Services Examination, one cannot be of a mindset which goes like a fragmented approach as the time gap between the Prelims and Mains is not much, meaning thereby, it should not be like one step at a time. You have to prepare for both the Prelims and the Mains together. Since the syllabus is the same, the only difference is the examination pattern. Therefore, candidates should always look for the bigger picture and conduct their preparation as they have to write a subjective long answer type question paper.
However, one should always keep in mind that sometimes while studying with the mindset of writing a long answer type question, aspirants happen to miss the minute details which are important with the perspective of multiple choice questions.
Common syllabus of Prelims and Mains stage
The candidates must know that the syllabus for Prelims and Mains stages is the same. The only difference lies in the pattern of the paper in each stage. The preparation for a particular legislation cannot be done in isolation for a particular stage, as the time gap between the two stages is not very large. Therefore, the candidates are advised to balance their preparation and study the legislation(s) with a broad mindset by broadening their horizons to read a law both in a minute manner (for Prelims stage) and at the same time an in depth study to be ready to write a long answer.
Do not neglect the language papers
It is often observed that the candidates seem to neglect the language papers in the light of preparing for the voluminous law subjects. However, the language papers provide an edge to candidates and give them a chance to increase their overall score. It is thus believed that language papers make or break the chances of selection of a candidate and therefore, should be given equal, if not more, importance than the legal syllabus.
Handling stress and peer pressure
Preparation for such a prestigious job judges an aspirant’s all-around skills which is not just academic retention but also how efficiently they handle stress, peer pressure and burden altogether, right from the preparation stage itself. There will be times when you can feel low or hopeless. Allow yourself to feel that too as this is a natural human reaction. However, the main and relevant part is how you come back filled with positivity, motivation and determination. Meditation, positive posters, positive music, or any other ting which works for you should be used by you to get rid of the pangs of negativity during the preparation journey.
Tips and tricks for preparation of the Mains stage
The Mains stage is an advanced stage and requires more focus while preparation.
Parallel preparation with Prelims
As mentioned above, the Mains cannot be the stage for which candidates happen to start preparing after their selection for the Prelims is done. This is because the date sheet for the Gujarat Judicial Examination does not allow that leeway.
Practice writing long answers
Even if that was not the case, the candidates should always understand a concept in depth because it helps in writing a long answer type question with ease. The candidates should learn to retain a concept and exaggerate it for the sake of writing a long answer. However, exaggeration does not mean that candidates can insert irrelevant information just for the sake of elongating the body of the answer. However, the candidates must learn how to interconnect concepts in the syllabus so that their answers can be innovative, and informative and stand out from others which gives them an edge over others.
See previous year question papers
The candidates must practise the previous year question papers and use it as a mock to prepare for the Mains stage. Previous year question papers help candidates gauge the question pattern of the examiners in the Gujarat Judicial Services Examination and which helps to be ready for the same on the day of exam.
Look for the answer sheets of selected candidates from the past
The candidates must look for the answer writing pattern which is considered and accepted by the examiners during the evaluation of the answer sheets of Mains stage. Interviews of selected candidates, their answer sheets if available online and patterns adopted by them need to be checked by the candidates before appearing for the Mains stage to help them gain an edge to pass the same with flying colours.
Cite relevant case laws in answers
The candidates must endeavour and channelize their preparation in a manner where they focus on learning case laws with the relevant topics of the syllabus. Citing case laws in the long answer type questions helps them gain an edge over other answers and leave an impact on the examiner. It helps in making an answer more convincing and complete. The candidates must prepare a list of case laws during preparation corresponding to the topics, mentioning key words of the same. This will help them in a quick revision of a particular topic during the last days of preparation.
Understanding versus Learning
The expectation from a judicial services aspirant is not just mugging up concepts, but the understanding out of it. When a concept is understood, it helps retention for a long time than a mere learning of it without taking its essence. An aspirant must always prepare for the judicial services examination with utmost broad mindset, which widens the horizons and also helps to draw a comparative analysis between the laws learnt and apply them practically in future as a Judge.
Tips and Tricks for preparation of the Interview stage
The Interview stage is the last leg of the judicial services examination journey of an aspirant. It is very important to hold one’s grit and determination to leave no stone unturned and clear the very last hurdle to reach the destination of dreams.
First Impression
The first and the foremost requirement of an interview stage, i.e., the Viva-voce stage, is always to look for a perfect first impression. The candidate should dress well and greet the panel graciously. This alone earns a lot of brownie points for the interviewees.
Confidence is the key
The candidates must learn how to confidently answer the questions put up to them, even when there arises a situation where a particular answer is not known by the candidate. In such a situation, the skill to own up to the situation is what the panellists judge about the candidate. You should never try to be over-smart in such a situation because that adds up negatively to the profile of the candidate. Detailed ‘Points to remember’ for the Viva-Voce (interview) stage are already included in this article.
Lead the conversation
The candidates in the interview stage should always answer any question put by the panellists in a very strategic manner, which leads the way for future questions. This is an art which can be built by practising for the interview stage by holding mock interviews with someone.
List of books to be referred for preparation
This is a non-exhaustive list for reference of the candidates interested to prepare for Gujarat Judicial Services Examination. The Bare Acts of the legislations mentioned in the syllabus of the Gujarat Judicial Services Examination helps largely during the preparation across the stages of the exam, specially the Prelims stage. Some questions are directly asked from the Bare Acts in the Prelims stage. Therefore, reading of the Bare Acts is very necessary during the preparation of Gujarat Judicial Services Examination.
Books for Gujarat Judiciary syllabus
S. No.
Subject
Book Title
Author / Publisher / Link
1
Gujarat Judicial Services Examination (In Gujarati language)
There are various online courses available for learning Gujarati language which can be opted by the aspirants for Gujarat Judicial Services Examination.
Books for Computer Knowledge
S.No.
Subject
Book Title
Author / Publisher
1
Computers
Computer Knowledge
Shikha Agarwal
2
Computers
Computer Awareness for General Competitive Exams
Soumya Ranjan Behera
Books for General Knowledge
S.No.
Subject
Book Title
Author / Publisher
1
General Knowledge
Newspaper and their editorial section
–
2
General Knowledge
Manorama Year Book
Mammen Mathew
Books for English
S.No.
Subject
Book Title
Author / Publisher
1
English
Objective General English
SP Bakshi
Books for Reasoning
S.No.
Subject
Book Title
Author / Publisher
1
Logical Reasoning
A Modern Approach to Logical Reasoning
R.S. Aggrawal
2
Analytical Reasoning
Analytical Reasoning
M.K. Pandey
Words of motivation
When to start preparation
Ideally, there is not a standard answer to this question, however, as per the stalwarts of the examination, an ideal time to start preparing for the Gujarat Judicial Services Examination is from your law school itself.
Starting the preparation from 3rd year or 4th year of the law school (in case the candidate is pursuing a five-year law school programme) OR from 2nd year of the law school (in case the candidate is pursuing a three-year law school programme) is considered favourable by the candidates who have taken this exam and have come out with flying colours.
It’s Never Too Late
The day you determine to appear in a judicial services examination should be the day you start your preparation from. Do not let the word ‘tomorrow’ come into the picture for starting off the preparations. A candidate, whether in a five-year law school course or a three-year law school course, can start their preparations right from their law school, depending upon their own self-assessment and calibre. There is not a thumb rule as to when to start preparing for any competitive exam, and there is no standard time which is taken for its preparation. Therefore, it is never too late once you have reached a determination to crack it down.
The post which is worth the hustle
The Gujarat Judicial Services Examination is conducted for filling the vacancies for the post of Cadre of Civil Judge in Gujarat Judiciary. This is the coveted post that you are signing up for the hard work and the hustle for.
Dealing with boredom and saturation
Breaking the monotony and boredom out of the targets, syllabus and mocks which the candidates go through during the process of preparation is a challenge which needs to be taken care of for better efficiency and results. The candidates should set their schedules in such a manner in which they provide commensurate amounts of breaks for breaking the boredom and monotony. In the breaks, they should do what makes them happy like pursuing a hobby, listening to music, meditation, or anything which refreshes their mind. Setting small, achievable targets motivates a candidate when they are fulfilled and encourages him / her to increase those targets. This should be the strategy of a candidate while preparing for heavy syllabus competitive exams.
Aspirants need to make their preparation stage interesting by using an approach that best suits them. It is very important for a candidate to figure out for himself/herself as to what makes him / her happy while studying. Some people like to have colourful and fancy stationery, which draws them towards the study table.
Some students cannot study for a very long time at a stretch. They are advised to follow the Pomodoro technique, which requires setting small intervals of targets for themselves and keeping an exciting activity to follow after completion of such targets. This way they get motivated to complete their targets, though small but effective.
Look for a hobby that refreshes you and makes you feel stress-free, as it is a safe idea to fall back to after a good amount of brainstorming. Hobbies help people rejuvenate for the monotonous jobs they need to perform.
Listen to motivational songs, decorate your room with motivational quotes, and surround yourself with motivating people. This seems futile, but it actually helps to be in the right mind set and to be driven towards the goal you have set yourself, DAILY.
Any game-changing tips
It has been a trend to make people believe that a person who studies for more number of hours steals the show on D-DAY. However, that statement holds no truth whatsoever. It is the value you get out of studying and not the time you put in. A particular candidate can be on the books for the whole day, but might get less output than a candidate who sits for a fewer number of hours with focus and concentration.
Therefore, do not fall for the trap of more hours of studying and rather go for a greater volume of output. The focus should be to gain maximum output out of the time you put in for studying in your daily schedule.
It may sound preachy, but taking the studies as a burden never helps to retain what is learnt for a longer period of time and also reduces the retention of the same. Therefore, the academic aspect of the preparation must become a passion for the candidate rather than a pressure. Try to make the preparation your passion, which will change the way you look at the forthcoming exam, and this will help you gain a different type of confidence during the preparation.
Frequently Asked Questions [For prelims]
Each part of Paper – I is a part and parcel of one paper or three papers?
No, the Part – A, Part – B and Part – C are the parts / sections of one single paper [Paper – I].
If I qualify for Prelims one time and fail the Mains in that year, will such qualification for Prelims continue for another year, or do I have to give Prelims again the next year?
The qualification of all the stages in the Gujarat Judicial Services Examination, including the Prelims, is only on a per-attempt basis, i.e., you have to sit again for the prelims stage in your next attempt if you fail to qualify for the subsequent stages.
Frequently Asked Questions [For Mains]
Are the minimum marks prescribed in the Mains stage required in each paper, or is it to be evaluated cumulatively?
The minimum marks prescribed category-wise are to be evaluated cumulatively; however, 40% marks are required in EACH paper as an additional eligibility criteria.
Is the selection list released based only on the marks of the Interview stage?
No, for the Selection List, marks of both the Mains (Subjective Papers) and the Viva – Voce (Interview) get evaluated.
Is any certificate or acknowledgement issued by the authorities after the Mains stage?
Yes, the candidates shall obtain a Practice / Experience Certificate from a competent Authority after publication of the result of Mains Written Examination.
Frequently Asked Questions [For Interview]
Is hard copy submission of any document required?
No, hard copy submission of any document is not required in the application process until specifically required to do so by the High Court. However, during the Viva-Voce (interview) stage, certain documents might be required by the High Court to be submitted in physical form (as already discussed above).
Is there a mandatory dress code prescribed in the notification?
No. There is no standard or particular dress code provided for the Viva-Voce stage of the Gujarat Judicial Services Examination. However, it is advisable to follow a formal dress code which involves a well groomed and presented individual which sets a good impression on the interviewers.
Frequently Asked Questions [Miscellaneous]
Is the result of Prelims carried forward for another attempt?
NO. The result of the Prelims stage of the Gujarat Judicial Services Examination is not carried forward to any attempt in the future. The candidate has to reappear and crack the Prelims stage if he fails to crack the Mains stage of the examination in any particular attempt.
Is the result for Mains carried forward for any future attempt?
NO. The result for any stage of the Gujarat Judicial Services Examination is not carried to any future attempt taken by the candidate. A candidate needs to start afresh after failing to advance in the examination procedure at any stage.
Is coaching important for successfully cracking the Gujarat Judicial Services Examination?
Yes. It is advisable to enrol in a course or coaching to prepare for the Gujarat Judicial Services Examination. It is because it helps in a systematic approach towards the syllabus and creates a regularity in preparation. Furthermore, it can be a tedious job for oneself to handle the pressure of a voluminous syllabus. However, this cannot be taken as universal advice, as people have different abilities and calibres. The advice given is only based on a popular opinion and after coming across the difficulties faced by the candidates actually pursuing or have pursued the preparation of the judicial services examination in the past.
Is there a mandatory internship requirement or criteria required for the enrolment in the Gujarat Judicial Services Examination?
No. There is no mandate as to a particular internship required for enrolling in the Gujarat Judicial Services Examination. However, internships are advisable for law students so that they learn on-ground practicalities of the profession, which helps them grow into an informed and better professional in the future.
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The year was 1993, when the world was just waking up to get blanketed by the new phenomenon of the internet. In just three years, there were over 77 million active users of the internet in 1996. Today, surpassing the phase where humans use the internet, we have built multitudes of gadgets that use and entirely depend on the internet, which we call the Internet of Things (IoT). Smart devices are all over the place and are an inherent part of our personal and professional spheres. They let us monitor situations and parameters through other viewing devices that can be voice-activated. These devices, constantly linked to the internet, collect, store, and may even transmit personal data without consent. Without robust network security, they can be exploited by hackers, who may target them with malware. They, hence, pose pronounced threats to privacy and data breaches by cybercriminals. This article will present the risks involved in data security and the losses that are incurred in the event of a data theft.
Trends in IoT cyberattacks
Over the past decade, the variety of IoT devices being developed has become harder to count day by day. As humanity envisions designing smart homes, smarter cities, and intelligent industrial spaces, we seek to capture data in as many ways as possible. With that being the underlying idea, numerous domestic, medical, and industrial devices are hitting the market each year. While they are used for an array of applications, their commonality lies in their single purpose of making our lives more and more convenient. It is making our homes, work environments, and public places intelligent.
IoT devices connected to the internet and clouds constantly gather data and interact with other accessible devices in the network. While 7 billion active IoT devices are already in use worldwide, the projected growth numbers are only staggering at 20 billion devices by 2025. This is 17% year-on-year growth in the last 5 years. This enormous growth also comes at the price of data security.
While on the one hand, we have numerous cases of IoT-focused cyber attacks, on the other hand, there is an ongoing pursuit in this area to safeguard against cyber criminals. We will be amused if we analyse the kinds of devices involved in the security incidents in 2023. They range from the most obvious ones, like smart TVs, smart wearables, and smart speakers, to the devices we most likely take for granted, like security cameras, fax machines, LED smart bulbs and even coffee vending machines. In a sensational incident in the US, a top e-commerce major faced a class action lawsuit for multiple hacking events in the security camera models it sold. The aftermath analyses of the incidents pointed to several risk factors involved with the devices permitting unauthorised access to the user’s Wi-Fi network and even other devices linked to that network! The company’s similar products came under the scanner for other critical dangers of letting the hackers access the device’s recorded footage.
Vulnerabilities of data theft
The year 2023 saw one of the most destructive data breaches from cyber-attacks that let out over 6 billion records of data. The biggest single incident in 2023 was in the UK, where nearly 4 billion records were breached. In a publicly disclosed data security incident concerning an attack on a popular parental control mobile application in the UK, 300 million records of parents and children were compromised. The stolen records usually involve names, emails and email attachments, phone numbers, employee IDs, and more. These are sensitive pieces of information that we ought to safeguard, even in a non-digital world. Exposed personal data has the risk of being used for subsequent phishing attacks on emails and mobile phones. Some criminals may sell the stolen data on the Dark Web, which has other grave dangers of being used for targeted online blackmailing, extortion or even identity theft and impersonation on social media.
Monetary loss
A cyber-attack comes at a heavy price, both for the data loss per record lost and for upgrading the data security to prevent future attacks. By analysing breach data from 16 countries belonging to over 550 entities that faced security incidents, it has been observed that an average data breach costs $4.45 million in 2023 and has been escalating like never before. In the case of a ransomware breach, the average total cost is the highest at $5.13 million in 2023. The biggest breach in 2023 had a record-high breach cost of $332 million. These costs will be reduced by an average of $1.76 million when using security AI and automation. It has been identified that organisations with incident response teams that specialise in quickly responding to cyber-attacks have helped prevent several breaches successfully. Implementing incident response plans has seen positive impacts in how much they save in subsequent damage costs, which are huge.
Apart from these, there are other costs that the companies will have to bear for inadequate security measures. Many nations, to streamline data protection and inculcate its seriousness, have been imposing hefty fines for non-compliance with data regulations. These fines can depend on the type of violations the companies committed. Over the past few years, many well-known brands have been in the headlines for having to bear these costs. Some of the most popular brands with the largest market capitalisations have failed at least once to safeguard public data. A Chinese social media supergiant reportedly faced a whopping fine of over $400 million in 2021 by Irish authorities. The company was fined for non-compliance with the European GDPR law concerning how it processed the children’s data. The users of its smartphone application were not verified for their age upon signing up, leading to age-restricted content being accessible to children.
Non-monetary loss
In the age of information, what could be scarier than a stranger having access to details of your name, social identification numbers, employment details, residential address and even worse, your banking details? While the companies are already struggling with the financial losses from such incidents, they also deal with data loss and reputation damage. For an established brand or a start-up, the biggest concern in these situations would be the damage they cause to customer trust and confidence, which is challenging to earn back easily.
According to a recent survey by Irdeto, a cyber security services company, of the organisations that faced IoT-based cyber security incidents, 90% confirmed some forms of damage from these incidents. While we face financial impacts from non-compliance and may invariably upgrade our data security after an incident, the loss of data is not entirely repairable. If the data breaches are of households, then the individuals are directly exposed to the risks of other forms of attempts at manipulation by fraudsters who stole such records.
Securing tomorrow
The frequency and rates at which data security incidents have been unfolding in the past few years have evoked a sense of urgency among countries, governments, and digital lawmakers for escalating data security. As the number of incidents is on the rise, the cost of data security, owing to the infrastructure needed to be better equipped, is skyrocketing. Even though it takes time to identify a data breach, it is possible to learn about them early on if we are vigilant enough. It has been found that the average time for detecting a breach is more than 204 days. Further, this takes close to 3 months to resolve, especially if there has been an instance of compromised passwords. These efforts are further amplified when the data is processed in a cloud environment. It is only through a better understanding of data security laws, threat detection methods, and incident response tools that we can ever minimise these losses.
The strategies to prevent these incidents fail mainly because of a lack of seriousness and the education needed to fully understand the risks they pose. Companies must impart internet security knowledge transfers and mock drills to not fall prey to phishing attacks while at work. Any insecure network is paving the way for illicit access. Maintaining secure passwords, having strong network protocols, fostering robust authentication methods, using software with updated security, and enabling secure data storage alone can help one protect themselves from IoT data breaches.
Data theft laws in India
India has several laws and regulations in place to protect against data theft. These laws and regulations aim to safeguard individuals’ personal information, prevent unauthorised access to sensitive data, and ensure that organisations handle personal d ata responsibly.
1. Information Technology Act, 2000 (IT Act):
The IT Act is the primary law governing information technology, including data protection, in India.
Section 43A of the IT Act criminalises unauthorised access, modification, deletion, or destruction of computer systems or data.
Section 66C of the IT Act prohibits identity theft and impersonation.
Section 72A of the IT Act provides for the protection of sensitive personal information (SPIs) and requires organisations to obtain individuals’ consent before collecting, using, or disclosing their SPIs.
2. The Personal Data Protection Bill, 2019:
The Personal Data Protection Bill, 2019 is a proposed comprehensive law that aims to regulate the processing of personal data by organisations in India.
The Bill introduces the concept of data fiduciaries, who are responsible for protecting personal data in their possession or control.
The Bill also includes provisions for data subject rights, such as the right to access, rectify, erase, and port personal data.
3. The Reserve Bank of India (RBI) Guidelines on Information Security, 2016:
The 2016 RBI Guidelines on Information Security require banks and other financial institutions to implement robust information security measures to protect customer data.
These guidelines include requirements for data encryption, access control, incident response, and security audits.
4. The Telecom Regulatory Authority of India (TRAI) Regulations on Privacy and Security, 2011:
The TRAI Regulations on Privacy and Security, 2011 set out requirements for telecommunications service providers to protect customer data.
These regulations include requirements for data encryption, access control, and incident response.
5. The Indian Computer Emergency Response Team (CERT-In) Guidelines:
CERT-In is the nodal agency responsible for cybersecurity in India.
CERT-In issues guidelines and advisories on cybersecurity best practices, including guidance on data protection.
6. The National Critical Information Infrastructure Protection Centre (NCIIPC):
The NCIIPC is responsible for protecting critical information infrastructure in India.
The NCIIPC has issued guidelines and standards for the protection of critical information infrastructure, including data protection.
These laws and regulations provide a framework for organisations to protect data from theft and misuse. Organisations must comply with these laws and regulations to ensure that they are handling personal data in a responsible manner.
Data theft cases in India
In India, there have been several significant data theft cases that have raised concerns about cybersecurity and privacy. These cases highlight the need for robust data protection measures and the importance of raising awareness among individuals and organisations about the risks associated with data breaches. Here are some notable landmark data theft cases in India:
Aadhaar data breach:
In 2018, a breach of the Aadhaar database exposed the personal information of millions of Indian citizens. This included sensitive data like names, addresses, fingerprints, and biometric details.
The breach raised questions about the security of the Aadhaar system and prompted a Supreme Court ruling that limited the use of Aadhaar for government schemes and services.
Paytm data breach:
In 2020, Paytm, a leading digital payments company in India, reported that some of its user data had been compromised.
The breach affected over 3.5 million users, exposing their personal information, including names, phone numbers, and email addresses.
The incident highlighted the vulnerabilities of digital platforms and the need for stronger authentication mechanisms.
COVID-19 vaccine registration data breach:
In 2021, a data breach occurred during the COVID-19 vaccine registration process in India.
The breach exposed the personal information of over 100 million individuals, including names, addresses, and phone numbers.
The incident raised concerns about the management of sensitive data during public health emergencies and the need for better data protection protocols.
Air India data breach:
In 2021, Air India reported a data breach that affected over 4.5 million passengers.
The breach exposed sensitive information, including passport numbers, credit card details, and frequent flyer program details.
The incident highlighted the importance of securing airline passenger data and implementing robust cybersecurity measures.
Maharashtra Government data breach:
In 2022, a data breach occurred in the Maharashtra government’s IT infrastructure.
The breach exposed the personal information of over 7 million citizens, including names, addresses, and Aadhaar numbers.
The incident underlined the need for government agencies to adopt rigorous data protection standards and invest in cybersecurity measures.
These landmark data theft cases in India underscore the urgent need for stringent data protection laws, robust cybersecurity measures, and heightened awareness about data privacy. Strengthening data protection frameworks and implementing comprehensive cybersecurity strategies are crucial to safeguarding sensitive personal information and preventing future data breaches.
Conclusion
Despite knowing the vulnerabilities of IoT devices, most businesses that suffered cyber-attacks had no clear plan for handling them and lacked comprehensive techniques to be secure. Now that the countries are lining up with their own data security and privacy policies, it is the need of the hour for institutions to seek collaboration with technology experts and legally sound policymakers to always be on the watch for threats and stay on guard.
This article has been written by VS Renuka and edited by Shashwat Kaushik.
Introduction
Imagine a world where products are built layer by layer, only using the exact amount of material needed. Where complex shapes and custom designs are effortlessly crafted, eliminating the need for wasteful casting and machining. Production happens locally, reducing the carbon footprint of global shipping. This is the vision of 3D printing, a technology with the power to revolutionise everything from how we make our phones to how we build our homes.
The world is at a crossroads. As our demand for products and resources grows, so too does our environmental footprint. Traditional manufacturing processes are often wasteful and energy-intensive, leaving a trail of pollution and depletion in their wake. But amidst this challenge, two innovative technologies emerge: 3D printing and machine learning. These powerful tools, when combined, offer a new paradigm for sustainable manufacturing—one that is efficient, eco-friendly, and brimming with the potential to shape a greener future.
But 3D printing alone is not enough. To truly unlock its potential for sustainability, we need a guiding hand, a partner in optimisation and efficiency. Enter machine learning, the ever-evolving field that empowers computers to learn and adapt. By analysing vast amounts of data, machine learning algorithms can optimise printing processes, minimise waste, and even predict and prevent failures. This potent combination—the creative freedom of 3D printing coupled with the intelligence of machine learning—opens the door to a new era of eco-friendly manufacturing.
What is 3D printing
3D printing is a method of creating 3D objects by adding layers of material one by one, based on a digital design. It was commercialised in 1980 by Charles Hull and is also known as rapid prototyping, stereolithography, architectural modelling, and additive manufacturing. 3D printing can be used for a wide range of products, including jewellery, engines, bridges, food, and medical components.
How does 3D printing work
3D printers are like regular printers, but instead of ink, they use materials like plastic and metal concrete. They also skip the paper and build things layer by layer, following computer blueprints. Imagine printing a tiny Lego block, then another on top, and another until you have a whole spaceship! This technology was supposed to be huge, with everyone printing replacement parts or custom items at home. It’s still cool, though! People have even printed houses with mud and coffee grounds! But it’s not perfect for everything. Sometimes, it’s just easier to do things the old way.
There are several types of 3D printing, which include:
Stereolithography (SLA)
Selective Laser Sintering (SLS)
Fused Deposition Modelling (FDM)
Digital Light Process (DLP)
Multi Jet Fusion (MJF)
PolyJet
Direct Metal Laser Sintering (DMLS)
Electron Beam Melting (EBM)
What is machine learning
Imagine a computer that gets smarter the more it sees and does. That’s basically what machine learning is all about! Here’s the breakdown in simple terms:
It’s all about learning: Machine learning helps computers learn on their own, just like humans do. But instead of books and experience, they use data. Think of it like feeding a computer tonnes of examples and it will figure out the patterns and rules all by itself.
Getting better with practice: The more data the computer sees, the better it gets at recognising patterns and making predictions. So, if you show it thousands of pictures of cats, it can eventually learn to tell a cat from a dog, even if you never explicitly told it how!
It’s everywhere! From recommending movies you might like to filtering spam in your email, machine learning is working behind the scenes in many ways. It’s even used in 3D printing to ensure things are made efficiently and with less waste.
What is the purpose of machine learning?
Make computers smarter: It gives computers the ability to learn and improve, just like humans, opening up a whole world of possibilities.
Automate tasks: It can handle repetitive jobs much faster and more accurately than humans, freeing us up for more creative and interesting things.
Solve complex problems: By analysing massive amounts of data, machine learning can help us find patterns and make predictions that would be impossible for humans alone.
Machine learning is still a young field, but it’s growing and evolving rapidly. With its ability to learn and adapt, it has the potential to change the world in amazing ways!
What is meant by eco-friendly
Imagine a magic machine that can build things layer by layer, just like icing on a cake! That’s basically what a 3D printer does.
You design an object on a computer and then feed the design to the printer. The printer heats a special type of plastic or other material and squirts it out in tiny layers, following your design exactly.
As the layers stack up, your object slowly comes to life, right before 3D printer printing.
3D printing is pretty cool, and it’s getting used for all sorts of things, from making toys and decorations to printing replacement parts for machines. It’s even being used to print houses and medical implants!
Here are some of the things that make 3D printing special:
It’s super versatile: You can print almost anything you can imagine, as long as you have a digital design for it.
It’s fast and easy: Most 3D printers are pretty user-friendly, and you can print simple objects in just a few hours.
It’s less wasteful: Unlike traditional manufacturing, 3D printing only uses the material it needs to build your object, so there’s less waste.
So, next time you see something cool and unique, there’s a chance it might have been made with a 3D printer.
Machine learning for eco-friendly 3D printing is useful in today’s time in practical applications
Imagine a world where we can create anything we need, from tiny toys to giant houses, using almost no extra material and way less energy. That’s the dream of eco-friendly 3D printing, and guess what? It’s not just science fiction anymore! Here’s how 3D printing and machine learning are teaming up to make manufacturing more sustainable:
Printing with smarts
Think of a 3D printer as a robot chef: It follows a recipe (the 3D design) but needs some smarts to cook up the perfect dish (the printed object). That’s where machine learning comes in.
Machine learning algorithms are like the robot chef’s secret sauce: They analyse mountains of data to figure out the best printing settings, like temperature, speed, and material flow. This means less wasted material, fewer failed prints, and overall greener printing.
Cool things they’re doing today
Doctors are printing custom medical implants and prosthetics: These are perfectly shaped for each patient, reducing waste and improving lives.
Engineers are printing lightweight parts for aeroplanes and cars: This makes them fly and drive farther on less fuel, saving money and reducing emissions.
Companies are printing spare parts on-demand: No more waiting weeks for replacements, which means less shipping and less stuff sitting in landfills.
Even brighter future
Imagine printing entire houses on-site: No more giant factories and trucks spewing fumes. We can build homes using local materials, designed for the environment they’re in.
Printing food that’s personalised and nutritious: No more food waste and everyone can have exactly what their body needs.
Printing clothes that fit perfectly and reflect our unique style: Adios, fast fashion, and its mountains of wasted clothes!
Of course, there are still challenges. We need to develop more eco-friendly printing materials, bring down costs, and make sure this technology benefits everyone, not just the big companies. But with the power of 3D printing and machine learning, a greener future is definitely within our reach. So let’s keep innovating, keep learning, and keep printing a better world, one layer at a time!
Laws on 3D printing in India
India, a country with a population of over 1.3 billion, is at the forefront of technological advancements. 3D printing, a rapidly evolving technology, has gained significant attention in India, presenting both opportunities and challenges. In this article, we will delve into the legal landscape surrounding 3D printing in India, exploring the existing laws, regulations, and policy initiatives related to this technology.
Intellectual Property Rights (IPR) and 3D Printing:
Copyright law: Copyright protection extends to 3D models, designs, and digital files, ensuring creators’ rights are safeguarded. Unauthorised reproduction, distribution, or sale of copyrighted 3D models may lead to legal consequences.
Patent law: Inventions related to 3D printing technology and processes may be patentable, offering protection for innovators and fostering innovation in the field.
Product Safety and Quality Control:
Standards and Regulations: India has various standards and regulations pertaining to product safety and quality, such as the Bureau of Indian Standards (BIS) and the Drugs and Cosmetics Rules. These regulations ensure that 3D printed products meet safety requirements, especially in sectors like healthcare and consumer goods.
Medical applications:
Regulatory Framework: For 3D-printed medical devices and implants, the Central Drugs Standard Control Organisation (CDSCO) has established guidelines and regulations. These guidelines ensure patient safety and efficacy of 3D printed medical products.
Cybersecurity and Data Protection:
Data Privacy: As 3D printing involves the use of digital files and models, concerns arise regarding data privacy and protection. India’s Information Technology Act, 2000, and related regulations govern data handling, ensuring the confidentiality and security of sensitive information.
Emerging Issues and Policy Initiatives:
Policy Framework: India’s National Policy on 3D Printing, introduced in 2017, aims to promote the growth of the 3D printing industry while addressing social, ethical, and environmental concerns related to the technology.
Legal challenges and future considerations:
Liability and Product Recalls: As 3D printing becomes more widespread, legal challenges related to liability and product recalls may arise, especially in cases of defective or unsafe 3D printed products.
Ethical Considerations: As 3D printing advances, ethical considerations regarding intellectual property rights, privacy, and the potential misuse of the technology (e.g., creation of weapons) need to be addressed.
India’s legal framework for 3D printing is evolving to keep pace with technological advancements. By addressing intellectual property rights, product safety, data protection, and ethical concerns, India aims to foster a conducive environment for innovation and responsible use of 3D printing technology.
Guidelines for 3D printing in India
The Indian government has issued specific guidelines for the use of 3D printing technology in the country. These guidelines aim to ensure the safe and responsible development and use of 3D printing while also promoting its potential benefits for various sectors. Here are the key guidelines issued by the Indian government for 3D printing.
1. National Policy on 3D Printing:
The government has formulated a National Policy on 3D Printing, which provides a comprehensive framework for the development and adoption of 3D printing technology in India. It outlines the vision, goals, and strategies for promoting the growth of 3D printing in the country.
2. Standardisation and quality control:
The government emphasises the importance of standardisation and quality control in 3D printing. It encourages the adoption of international standards and best practices to ensure the reliability and safety of 3D printed products.
3. Intellectual Property Rights (IPR):
The guidelines recognise the importance of protecting intellectual property rights (IPR) in 3D printing. They outline measures to ensure that IPRs are respected and enforced, while also facilitating access to 3D printing technology for legitimate purposes.
4. Safety and health regulations:
The government has established safety and health regulations for 3D printing operations. These regulations aim to protect workers and users from potential hazards associated with the use of 3D printers, such as exposure to harmful fumes and emissions.
5. Environmental considerations:
The guidelines emphasise the need to consider environmental sustainability in 3D printing. They encourage the use of eco-friendly materials, waste reduction strategies, and energy-efficient 3D printing processes.
6. Education and training:
The government recognises the importance of education and training in 3D printing. It supports the development of educational programmes and training courses to enhance the skills of professionals and individuals in the field of 3D printing.
7. Research and Development (R&D):
The government encourages research and development (R&D) in 3D printing, particularly in areas such as materials, processes, and applications. It provides funding opportunities and support for research institutions and universities to conduct 3D printing-related research.
8. Public awareness and outreach:
The government undertakes public awareness campaigns and outreach programmes to educate the public about the potential benefits and applications of 3D printing technology. It aims to create a favourable environment for the adoption of 3D printing across different sectors.
By issuing these guidelines, the Indian government aims to foster a conducive ecosystem for the growth and responsible use of 3D printing technology in the country. These guidelines provide a framework for stakeholders to innovate and leverage the potential of 3D printing while ensuring public safety, environmental sustainability, and compliance with legal and ethical considerations.
Pros and cons of 3D printing
Challenges and considerations
Data quality matters: “Garbage in, garbage out” applies here. Accurate data is crucial for effective ML algorithms.
Not a one-size-fits-all solution: 3D printing might not be ideal for every industry or product.
The future of sustainable manufacturing:
3D printing + machine learning are a powerful combo: Combine these technologies for smarter, greener manufacturing.
Businesses need to adapt: Embrace sustainable technologies to stay competitive and protect the planet.
Rethinking manufacturing: Let’s prioritise sustainability in all aspects of production for a healthier planet.
Pros
It’s like magic: It makes crazy shapes: Think spaceships with hollow insides or custom medical stuff.
Doctors can print amazing things: Dentures, hearing aids, and even prosthetics that fit perfectly.
Engineers love it: Build complex parts in one go, saving time and money.
Eco-friendly: Less waste, plus many materials are reusable.
Super-fast: Need a part? Get it in hours, not days.
Affordable: Printers cost less than smartphones now.
But it’s not perfect:
Not quite precise: Think “handcrafted,” not “laser-sharp.”
Costs to get started: Printer, materials, learning curve… gotta pay to play!
Copycats and thieves: Fake stuff could become a problem.
Robots taking jobs? Maybe, but new tech jobs will pop up too!
Picky eater: Not all materials are available yet.
It needs a little extra work: Sanding, cleaning—not quite instant magic.
Slow for mass production: Great for small batches, not millions of copies.
Size matters: Big projects might need bigger printers.
Conclusion
The journey towards a sustainable future is paved with challenges, and the path ahead is not without its hurdles. Ensuring access to eco-friendly materials, addressing energy consumption, and navigating the ethical implications of these technologies are crucial considerations. But the potential rewards are undeniable. By embracing the power of 3D printing and machine learning, we can unlock a future where innovation and sustainability go hand in hand. A future where products are made with both precision and purpose, where resources are cherished and waste is minimised. This is not just a technological revolution; it’s a chance to rewrite the narrative of our relationship with the planet. So let us roll up our sleeves, unleash the ingenuity of these technologies, and together, build a brighter, greener future, one layer at a time.
But the future’s bright! This technology is young and growing fast. More materials, better quality—it’s all coming! Keep an eye on 3D printing; it’s going to change the world!
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