In this blogpost, Priyanka Kansara, Student, National Law University, Jodhpur explains the inter-relationship between the law related to Intellectual Property Rights and the Competition Law. She talks about the complementary nature of both these laws together with the concept of compulsory licensing.

INTRODUCTION

The relationship between the Laws- are they contradictory or complementary to each other?

Competition Law is aimed to provide an ideal mercantile environment while keeping in view the economic development of the country, promotion and sustenance of the competition in the market and protection of the interests of the consumers in the country. Competition is based on the Intellectual Assets and innovation skills. Intellectual property, like, any other property, is considered as an asset of its owner. Intellectual assets in the globalized economy are the way towards the economic growth and a strengthening factor, which enhance the competition in the market.

While discussing these legal regimes, two important perspectives come into mind; firstly, the impact of IPR in shaping the discipline of the Competition Law, and secondly, the application of competition law on the post grant use of IPRs. Completion and innovation are two parallel situations interlinked with each other, which define Competition Law and IPR Law respectively.

It is true that IPR Law Regime creates a monopoly but Competition Law removes monopoly. Intellectual Property Rights protect and incentivize along with a monopoly right over the invention for a limited period of time. On the other hand, Competition Law protects and prevents unfair competition. Ultimately, Intellectual Property Rights Law reduces competition whereas, the Competition Law creates competition. However, it is a myth that Competition Law and Intellectual Property Law regime are contrary to each other. Instead, they are parallel to each other as Intellectual Property law protects the free riding of creative achievements and incentive to innovation. By preventing free riding, firms are encouraged to produce their own goods, which necessarily, lead to competition. IPRs create an exception to free competition, by granting exclusivity, to promote innovation. Whereas, the Competition Law regulates the property rights including the IPR, and prevents the unfair use of someone’s Intellectual assets.

The Competition Law aims to prevent anti-competitive behaviour to control unlawful exploitation of the position of strength in the market while dealings with third parties and it regulates the property rights; while IPRs are used to leverage and expand market power beyond the essentially granted anti-free-riding function which can be restricted by antitrust law.

Strict Legislative interpretation of the Intellectual Property Law regime confines the possibility of enhancement of Competition Law phenomena and the nucleus of IPRs Law to the legislation only; it confines the Competition Law within a boundary within which the competitors may exercise their exclusive rights to hold the licence and right to innovate with infringing other Intellectual Property Rights. But, it is important to draw a clear demarcation between the extent of Intellectual Property Rights Protection and Competition intervention for innovation in high technological position. Monopolistic rights provided under the Intellectual Property Laws are to be provided for a certain specific time; the reason behind it is that technology and the innovations should change with the passage of time as it is a compulsory requirement for the economic development. Competitive policy in the market requires new trend and ideas; the formulae to Intellectual assets are made open for general public after a specific time so that new innovations could be created by experimentation. So, the meaning is to say that, in reality, Intellectual property Laws are interlinked with Competition Laws for commercial purposes. IP Law regime is not just a monopolistic policy, but it balances the stance of Intellectual assets with the Global Market.

Concept of Compulsory Licensing: An Emerging trend towards Indian Patent Law Regime[1] and Licensing Agreement: Licensing process

Licensing allows the holder or the owner of the Intellectual Assets to have a degree of control over its own creation so that the others cannot take undue advantage of it in the industry. Generally, IPR is considered as General Anti- trust principle. The events of IPRs related anti-competitive practices can be treated as a ground for granting a compulsory licence. Basically, Licence and Licensing Agreements are used to reserve the rights with regard to the licensee and the licensor, and extension of a ‘brand’ and co-marketing strategies. Licensing Agreements, which should fulfil all the conditions needed for a valid agreement, ascertain and expand the rights of the manufacturers, distributors.

Article 31 (b) of the TRIPs Agreement states about the use of the subject matter without the authorization of the right holder, if prior to the use, the proposed user has made efforts to obtain authorization from the right holder on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period of time.  This Article of the TRIPs Agreement only refers to a voluntary licence as a condition for the granting of a compulsory licence, the unilateral refusal to licence a patent (generally known as “refusal to deal”) can be considered grounds for granting a compulsory licence and has been contemplated in a number of national patent laws.

Article 40 of the Agreement specifically provides for the possibility of regulating restrictive practices in licensing agreements. This is crucial to ensure the right balance between competition and protection of Intellectual Protection Rights. Cl. (1) talks about the agreement with regard to some licensing practices or conditions pertaining to intellectual property rights, which restraint Competitions, which may have an adverse impact on the trade and may impede the transfer and dissemination of technology.

Position in India

The provision of Compulsory Licensing may be used in the cases of cross-licensing that unduly limit competition policy perspective. Such pools can be used for pro-competitive purposes. Under Indian Patent Act, 1970, the provision with regard to compulsory licensing is specifically given under Chapter XVI of the Act. In March 2012, India’s Controller of Patents granted the first Compulsory Licence in the case of Natco Pharma Ltd. v. Bayer Corporation[2]. Section 84 (1) (a) of the Indian Patent Act, 1970 requires that the reasonable requirements of the public with respect to the patented invention, must not have been satisfied, in order for a compulsory license to be granted; whereas Section 84 (1) (b) of the Act provides that in order for a compulsory licence to be granted, the patented invention must not have been made available to the public at a reasonably affordable price. Further, Section 84 (1) (c) allows for a Compulsory Licence if the patented invention is not worked in the territory of India. The Bayer’s decision sets the precedent for making expensive patented drugs available for Compulsory Licensing under the Patent Act, but it might have an adverse impact on the Foreign Pharmaceutical Industries.

IPR and abuse of dominant position

To prevent and restrict the misuse of monopoly over a subject-matter is a major issue today in the corporate arena. For example, in several cases; it is found that Microsoft has abused its monopoly. Microsoft has abused its dominance to gain competitive advantages in other markets, blocking innovations, and exploiting customers. In India, Microsoft India was held liable for abusing its dominant position as a market leader in the sale of software licences. The Supreme Court held that “by merely changing the label of the licences, though the end use of the licences is the same, the respondents (Microsoft) cannot create two different tie-up arrangements and charge substantially different prices for the licences in question.”

Similarly, the case against DTH operators in India, from the point of view of Competition Law as well as IPR Law can be considered to reduce the Competition as it gives inclusive rights to the holders and exclusive monopoly while hindering others from offering the products in the market.

Specific Overview

An IPR holder is not entitled to exclude competitors from the use of his/her rights when a licence is essential for competition, such as where the refusal to license prevents the introduction of a new product or allows the intellectual property holder to monopolise a secondary market. Developing countries may draw interesting lessons from the application of the concept of refusal to deal and the essential facilities doctrine in developed countries.

The area of IPR under competition law is premised on the assumption that the intellectual property is properly obtained. Competition law may be applied when particular intellectual property rights have not been obtained in the proper manner or are not deserved, for instance when patents have been obtained illegally or by deceiving the patent office. Acquiring patent rights for frivolous developments or with a overbroad claim can provide grounds for anti-competitive intervention even in jurisdictions where IP is essentially seen as compatible with Competition Law.

The anti-competitive effects of copyright protection of software, particularly of interfaces, have been central in several cases, notably involving the dominant software provider, for instance, Microsoft. Competition law concerns have also frequently arisen in relation to copyright collecting societies. A fundamental tension between the goals of trademark and competition laws has also been observed in some cases.

A balanced approach towards the regulative mechanism for the rights between Competition and IPRs can be achieved through diversity of policies and regimes. The legitimate goal of Anti-trust Law is the promotion of efficiency through the protection of the competitive process itself rather than any particular competitive strategy; thus anti –trust law seeks to protect competition, not competitors.

[1] India: Compulsory Licensing: An Emerging Trend Towards Indian-Patent Regime, 25^th February, 2014, Mondaq:Connecting knowledge and People, http://www.mondaq.com/india/x/295286/Patent/Compulsory+Licensing+An+Emerging+Trend+Towards+IndianPatent+Regime (accessed on 07-12-2015).

[2] Order No. 45/2013 (Intellectual Property Appellate Board, Chennai).

In this blogpost, Shivam Anand, IIIrd year Student, Damodaram Sanjivayya National Law University has critically examined the Sahara case which is considered as one of the landmark judgments of the Supreme Court with respect to defining powers of SEBI.

Introduction

Securities Exchange Board of India v. Sahara India Real Estate Ltd. is regarded as one of the landmark cases with reference to the power and jurisdiction of SEBI in the case of corporate fundraising. SEBI claimed that in the form of Optionally Fully Convertible Debentures, Sahara India Real Estate Corporation Limited (SIRECL) and Sahara Housing Investment Corporation Limited claim to have collected deposits from general public including cobblers, labourers, artisans and peasants. Around 23 million people, mostly from villages and small towns subscribed to this scheme and invested about 24,000 crores rupees. Now before moving on with the main crux of the case, one should understand the term “Optionally Fully Convertible Debentures”.

Optionally Fully Convertible Debentures:

Debenture can be understood as an instrument to raise loan by the company. For example, if a company X requires capital in order to proceed with its new idea or project it can opt to raise capital by taking a loan from the bank, but that would raise the issue of high interest rate and other terms which the company should adhere to. In this case, the company has an option to raise a loan from the public by means of debentures. One of the important aspects of this type of fundraising is that the company has to pay the specified amount with interest, and although the money raised by the debentures becomes a part of the company’s capital, it does not become share capital. The company can issue secured and unsecured debentures. A debenture may be wholly or partially convertible at the time of redemption depending on the fact that whether the special resolution is passed by the shareholders. Now under Optionally Fully Convertible Debentures, it depends on the choice of the investor as when the debt holder wants to convert its debentures into shares. The conversion is good in case the company is about to make a good amount of profit, or the price of the shares of the company is about to increase. Thus, the very fact which should be taken into consideration is that the investor in this case where he has been issued  OFCD should have basic ideas of the performance of the company, market fluctuations and other financial market aspects to gain on the conversion of the debentures.

SAHARA’S MANOEUVRE

One of the noteworthy facts of this case was that Sahara took investment from the people belonging to the lower strata of the society who don’t have much idea about the working of financial institutions, fluctuations in the market and the skill to check the daily performance of the company. Sahara claimed that it was a private placement and only selected clients were intimated about the scheme. SEBI has no jurisdiction with respect to the same as its jurisdiction is restricted only to listed company. It also contended that OFCD’s issued by the company does not fall within the ambit of the definition of the “securities” as provided under the SEBI Act. The main contention raised by the Sahara was that SEBI has no jurisdiction over the unlisted companies and, therefore, objected its interference in the present case on the ground that the said company comes within the ambit of Unlisted Public Companies Rules 2003.

OBJECTIONS RAISED BY SEBI  

As per the provision of Section 55A of the Companies Act, 2013, it paves the path for SEBI’s jurisdiction and also restricts it to listed public company and in this case, the company in question being an unlisted one does not fall within the ambit of SEBI’s jurisdiction. As per the facts of the case if Sahara contends that it was a private placement and only selected clients were asked for investment then the whole task of OFCD should have been wrapped up within 10 days as per rules and regulations and in adherence to the guidelines and also the offer should have been restricted to not more than 50 members. But in this case more than 23 million people invested in the scheme and it went down for more than 2 years which made it an obligation on the company to make it listed as per Section 73 of the Companies Act, 2013 which prohibits private company to take deposits from the public and allows only eligible companies to accept deposits from the public. It must be intimated to the registrar of the company and in such a circumstance brings it within the purview of the SEBI. Therefore, in the light of facts provided and arguments advanced SEBI contented that OFCD scheme is within the purview of the definition of securities as provided by SEBI Act 1992 and Sahara should be obligated to refund the deposits of more than Rs. 24000 crores to its investors as it was taken in contravention of the laws of the land 

SUPREME COURT REMARKS

• Supreme Court finally made an important observation that it was stated by Sahara company that its OFCD scheme was a kind of private placement and included only selective clients yet it failed to prove the same, and it is very well evident that it was a kind of public offer in which more than 23 million people invested over which SEBI has complete authority.
• In the case of private placement, the documents should be submitted by the company that its investors had some relation with the company which in this case was not proved by the Sahara group and thus it does not qualify the claim of the investment being a private placement.

DECISION OF THE CASE

The Hon’ble Supreme Court ordered Sahara to refund the entire deposits collected by it through Red Herring Prospectus at an interest rate of 15% till the date of refund. It also authorised SEBI to take legal recourse in case the appellant i.e. Sahara fails to comply with the said order.

CRITICAL ANALYSIS

I believe that the observation made by the Supreme Court is justified from all perspectives as it emphasized the fact that how Sahara tried to defeat the provisions of various acts like SEBI Act, 1992, Companies Act, 2013 and jeopardized the lives of so many investors who mainly belonged to the lower strata of the society and barely earned enough to keep their body and soul together. It tried to gamble the life of majorly illiterate group of people who have less or no idea of the financial position of a company and thus are ambiguous about harnessing the opportunity to make benefit out of schemes such as OFCD which requires knowledge about performance of the company and basic knowledge about proper time to turn such debentures into shares which will be a profitable for them. Such investors are unaware of the risk that comes along with such luring schemes and out of ignorance they put all their money in one hope given by such unscrupulous managers of these companies. This decision of the Supreme Court in every manner will be a major precedent which will act as a deterrent for them not to involve themselves in such incoherent schemes.

In this blogpost, Saumya Agarwal, Amity Law School, writes about the various issues of the north eastern people of the country and the discrimination faced by them particularly in metro cities. She has also talked about various measures taken by the government to protect the interests of these people and the need for strengthening such laws.   

INTRODUCTION

Women constitute half of the population of the world. They are often referred as goddesses yet they are subjected to innumerable crimes. In 2012, there were 244,270 reported incidents of crimes against women[1] leaving aside the unreported incidents. Most reports suggest that crimes committed against women are mostly by someone that they know.

Violence against women is woven into the fabric of society to a great degree. A significant number of the individuals who commit this justify it by solid societal messages which say that rape, assault, battering, sexual harassment, child abuse, and different types of brutality are worthy. We constantly see pictures of sexual violence against women in the news, on TV, in the films, in the newspaper, in our homes and work environments. It is an unavoidable truth for women of all ages, races, and classes.

India being a secular state is a cultural mosaic. There are people of every religion, caste, colour, creed in India. Article 14 of the Constitution of India confers on its people the right to equality and equal protection before law. It is the duty of the state to protect its people from any form of discrimination against them. Yet, there are certain disparities being practised in India based on various grounds like on the basis of religion, caste, place, etc. So to protect them the state has to make special acts, amend the already existing laws, implement the amended and curresnt laws etc.

Birthplace is one ground on which discrimination is done. This has greatly been felt by the North Eastern people of Assam, Meghalaya, Arunachal Pradesh, Manipur, Nagaland, Tripura and Mizoram.

Between 2005 and 2013, close to two lakh, people have migrated to the Capital city from the Northeastern region.[2]

PROBLEMS

An article in the Mail Today on April 18, as reported by North East Support Centre & Helpline (NESCH) states that up to 78% of the 200,000 North-East population that lives in Delhi today is subjected to various kinds of humiliation, including sexual harassment, eve-teasing, molestation, human trafficking, beating, rape, murder, etc.

STATISTICS

The Home Ministry data shows that crimes against people of northeastern region have increased from 27 in 2011 to 73 in 2013. The highest crime reported was molestation, rape and hurt. While molestation increased by 177% in that period, the incidents of rape rose from one to seventeen (17) in the same period. Two-third women from the northeastern region have also faced some kind of harassment in the Capital

MEASURES UNDERTAKEN

Women of Northeastern region are often addressed ‘Chinki’ which is considered as a derogatory term. To curb the racial discrimination against them, the Ministry of Home Affairs has asked all the States and Union Territories to book anyone who commits this atrocity against the people of the region under the Schedule Caste and Schedule Tribe (Prevention of atrocities) Act, 1989. It is a non-bailable offence with an imprisonment of five years.

The unpleasant incident of killing a 19 year old North Eastern boy Nido Tania in 2014, led to widespread protests among the North Eastern people. To pacify them, the Bezbaruah Committee, headed by M.P. Bezbaruah was formed to report the issues raised by the North eastern people of the country to MHA. According to the ministry, the crimes in which north easterners were victims have gone up by 270%[3]. The committee was also asked to suggest measures which could be implemented by the government of India.

The Government has also taken many steps like forming Special Cell for North Eastern State Residents. They have made a special help-line with the number 1093, Schedule Castes and Scheduled Tribe Protection Cell, regular patrolling of the northeastern people’s colonies to protect them on the recommendation of the Committee.

The government is all set to amend the Indian Penal Code to strengthen the legal framework against racial discrimination. The Ministry of Home Affairs is in the process to insert Section 153C and 509A in the IPC. Provisions such as legal assistance, special initiatives, educating the people about the North East have also been taken care of.

The Ministry of Home Affairs told the Delhi High Court that it has decided to amend the IPC to toughen the laws against the legal framework against racial discrimination. However, the IPC Amendment bill has not been introduced in the Parliament as yet.

CURRENT SITUATION

Even after all these actions taken by the government, some incidents are still being reported. In July this year, a Manipuri nurse was physically assaulted against which the North-East Forum for International Solidarity (NEFIS) protested. They condemn the unsafe working environment at the workplace. These assaults are not just crimes but they are also violation of labour rights, such as the right to a safe work environment.

There are certain provisions in IPC particularly dealing with the safety of women. These are-

Further, in order to protect the interests of these people, the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Amendment Bill, 2014 was introduced in the Lok Sabha by the Minister of Social Justice and Empowerment by Mr. Thaawar Chand Gehlot. The bill came after a large number of cases of violation against the North –eastern people were reported. The bill replaces the Schedule Cast and Schedule Tribes (Prevention of Atrocities) Amendment Ordinance, 2014 and seeks amendment of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989.

The Act provides that assaulting or sexually exploiting an SC or ST women is an offence under the Act. The Bill adds that: (a) intentionally touching an SC or ST woman in a sexual manner without her consent, or (b) using words, acts or gestures of a sexual nature, or any similar practice will also be considered an offence.  The offence is punishable with imprisonment for a term which shall be not less than six months which may extend to five years and with fine. The Bill also seeks to establish special courts for the trial of such offences and the rehabilitation of victims. In this way, the new bill aims to strengthen the law to stop atrocities against scheduled caste and scheduled tribe particularly dealing with the claims of northeastern people.

[1] https://en.wikipedia.org/wiki/Violence_against_women_in_India

[2] http://timesofindia.indiatimes.com/life-style/people/Call-a-Northeastern-Chinki-be-jailed-for-5-yrs/articleshow/13848316.cms

[3] http://timesofindia.indiatimes.com/india/Crimes-against-northeast-Indians-in-Delhi-up-270/articleshow/41476883.cms

In this blogpost, Apoorv Singh, Student, NALSAR, Hyderabad, writes about the various common instances of ‘cheque bouncing’; what are the remedies available to a person as a ‘payee’ and the procedure that has to be followed for filing a complaint in this situation.

Cheque is a type of bill of exchange and is covered under the Negotiable Instrument Act(hereinafter referred as the Act). In legal terminology, the person who issues the cheque is called the ‘drawer’; the person in whose favour the cheque is issued is called ‘payee’, and the bank that is used for this transaction is called the ‘drawee’.  Cases of ‘cheque bounce’ are something quite common these days. We see a lot of people facing the incidents of ‘cheque bounce’ in our daily lives. But do you really know the procedure to deal with the cases if you become a victim of the same? What are the legal remedies available to you once you are the payee and the cheque that was issued in your favor bounces? Also, if you are drawee and your cheque bounces what are the remedies available to you to stop criminal proceedings in the court of law? All these issues will be addressed in this article in detail, but firstly we should look at some instances when a cheque is usually called to be ‘bounced’.

1. ‘Account Closed’:  It will be covered under Section 138 of the Negotiable Instrument Act. This condition occurs when all the money from your account has been withdrawn, and there is no money left. If this situation continues for some time than the bank closes the account of that person and any cheque issued from that account will bounce. This was held by the Hon’ble Supreme Court of India in the case of Neps Micon Ltd. & Ors v.  Magma Leasing Ltd.[1]
2. ‘Stop Payment’ instructions: The cheque will be dishonored if the drawer will instruct the bank to stop the payment of the cheque from his account. This will again fall in Section 138 of the Act. This was held in the case of Mahendr Dadia v. State Of Maharashtra[2]
3. ‘Refer to drawer’: This is the statement or expression by the bank when the drawer does not have sufficient balance in the account and draws a cheque in favor of payee, and the bank is unable to make payment to the payee and hence shows this message. This is also covered under Section 138 of the Act. This was laid down in the case of Lily Hire Purchase Ltd. v. Darshan Lal.[3]
4. Effect of other endorsements: It has been repeatedly held by courts that manifest dishonest intention of the drawer resulting in dishonor of the cheque would lead to prosecution under Section 138 Negotiable Instruments Act, regardless of the actual ground of dishonor.

Procedure to file a complaint

If the cheque has been ‘bounced’ then the first step that a payee needs to take is to give notice to the drawer, within 30 days of knowing that the cheque was bounced. After receiving the notice, if the person does not rectify his mistake and makes good the loss suffered by payee within 15 days, then he can be prosecuted legally. If he pays the payee within those 15 days, then he would not be said to have committed any offence, and no action can be taken against him. one can file a suit for recovery of the cheque amount along with the cost & interest under order XXXVII of Code of Civil Procedure,1908,(which governs the suit in summary trial) and can also file a criminal complaint u/s 138 of Negotiable Instrument Act for punishing the signatory of the cheque for having committed an offence. This action can be taken only after giving prior notice to the other party and after the expiry of 15 days after the notice has been received by the drawer.

Which court to be approached?

As per the second ordinance related to Negitiable Instument Act passed by the president the complainant can approach the court under whose jurisdiction the bank, where the cheque was presented lies.

But before approaching the court of law one condition that needs to be kept in mind is that the bounced cheque would have been issued for the discharge of legal duty and must not have been given as a gift. Only those cheque which have legal obligation can be enforced in the court of law.

Punishment & penalty

On receiving the complaint, along with an affidavit and relevant paper trail, the court will issue summons and hear the matter. If found guilty, the defaulter can be punished with a monetary penalty which may be twice the amount of the cheque or imprisonment for a term which may be extended to two years or both. The bank also has the right to stop the cheque book facility and close the account for repeat offences of bounced cheques.
If the drawer makes payment of the cheque amount within 15 days from the date of receipt of the notice, then drawer isn’t said to have committed any offence. Otherwise, the payee may proceed to file a complaint in the court of the Jurisdictional Magistrate within one month from the date of expiry of 15 days prescribed in the notice.

[1] 1999 ISJ (BANKING) 0433; 1999 (1) APEX C.J. 0624; 1999 AIR (SCW) 1637

[2]  (1999) BANKING CASES (BC) 133 (17/03/1998

[3] (1997) 89 COMPANY CASES 663 (10/01/1997)

Being republished from A First Taste of Law, where it had appeared in 2012.

A’ historic’ decision waited those present in the Madras High Court courtroom on the 1st of September 2011. In a major relief to three persons convicted for one of the most gruesome assassinations of modern India, that of the then Prime Minister Rajiv Gandhi, the Madras High Court stayed the execution of death sentence earlier meted out to them, for 8 weeks. The news of the verdict was received joyously by the anxious crowd gathered outside. Sombre reflections soon turned into a mood of celebration. The courts’ order is being seen as a ray of hope for those campaigning to save the trio-Murugan, Santham and Perarivalan- whose clemency petitions had been rejected by the President some time back.

A battery of advocates, led by the eminent jurist, RamJethmalani, appearing for the convicts, questioned the State’s decision to hang the trio after keeping the mercy petitions in limbo for as long as 11 years. The indefensible delay, he argued, unless properly explained and justified, has rendered this death penalty, immoral, illegal and unconstitutional. He questioned the very rationale underlying the inordinate delay and made a scathing remark that owing to the delay in disposing of the case, the Centre is squarely responsible for inflicting immense “suffering and mental torture” on the accused. Adding that no satisfactory explanation had been given for the delay, he pointed out that the decision for execution of death sentence in the’ present context amounts to violation of Article 21 of the Indian Constitution, which guarantees protection of personal life and liberty.

Granting interim stay, the bench deferred the hanging, earlier slated for the 9th of September and issued notice to the Centre seeking an explanation from the Centre as to why it took the President 11 long years to reject the mercy pleas. President Pratibha Patil had rejected them in early August this year even though the mercy pleas had been pending since 2000.

Following this rejection, the Tamil Nadu Assembly had then passed a unanimous resolution requesting the President to reconsider her decision. Needless to say, speculation regarding this resolution having influenced the Madras High Court verdict a fair bit has been doing the rounds in the Indian political circles.

However, the fact that this verdict has caused an intellectual storm and triggered a fresh debate on the ethical desirability of the death penalty in India is undeniable. In the wake of this ruling, similar demands for clemency across states are on the rise. The political crises have now empathised with the cause of Devender Singh Bhullar-a Punjabi Sikh convicted of a terror attack in New Delhi in 1993 that had claimed the life of a few denizens. Similarly, Jammu and Kashmir Chief Minister Omar Abdullah reflected the populist sentiment in his state when he tweeted that had his State Assembly passed such a resolution demanding clemency for Afzal Guru, the mastermind behind the Parliament Attacks in December 2001, the reactions would not have been so “muted”.

How does one look at the emerging issues and challenges on this count essentially from a legal perspective?

Punishment is a natural response to crime. The principle is acknowledged worldwide that letting off criminals may result in vigilante justice. The punishment has to be proportionate to the degree of wrongdoing and mitigating circumstances have to be considered while deciding the quantum of punishment. It goes without saying that the accused will be given a fair chance to defend himself/herself.

But various societies in different parts of the world react to crime in different ways. While some, such as a few Arab countries, choose the retributive punishment of “an eye for an eye”, others have deterrent punishment. Of late, there has been a shift towards restorative and reformative approaches to punishment in many countries, including India.

Capital crimes in India include murder, gang robbery with murder, abetting the suicide of a child or insane person, waging war against the Government and abetting mutiny by the armed forces. In recent years, the death penalty has also been imposed under a new anti-terrorism legislation for people convicted of terrorist activities.

Section 354(3) of the Criminal procedure, which was added to the Code in 1973, requires a judge to give “special reasons” for awarding death sentences. In 1980, in the Buchan Singh case, the Honourable Supreme Court propounded the “rarest of rare” doctrine and since then, the life sentence is the rule and death sentence, the exception.

But recently, the Supreme Court refused to impose the capital punishment in the Graham Staines, Jessica Lall and Priyadarshini Mattoo cases on the grounds that these did not fall within the category of “rarest of rare”. Is the judiciary failing to clearly understand the implications of this phrase and becoming increasingly averse to capital punishment?

The Recent record suggests so. Despite India voting against a UN resolution calling for a moratorium on death penalty in December 2007, in practice, however, the number of death penalties meted out in post-Independent India has been limited. Since 1995, only one execution has been carried out in India, that of Dhanonjoy Chatterjee in 2004.

The judiciary appears to be hesitant in awarding the death penalty. The executive has disposed of several mercy petitions in the past few months, but around 20 such pleas, including that of Afzal Guru are still pending before the President.

According to the renowned Human Rights organisation, Amnesty International, in India, at least, 100 people in 2007, 40 in 2006, 77 in 2005, 23 in 2004 and 33 in 2002 were sentenced but not executed to death.

The Rajiv Gandhi Assassins’ case may prove to be a decisive test for the death penalty in India.Whatever be the decision of the Madras High Court, the matter is bound to go the Supreme Court, which would lay down guidelines for timely disposal of mercy petitions. If the court rules that inordinate delay is a ground for converting a death penalty to life imprisonment, then it would surely have a bearing on all other mercy petitions, including that of Afzal Guru.

In the first decade of 21st century, more than two-thirds of countries all over the globe have abolished the death penalty in law or practice. Ninety-six countries have abolished capital punishment for all crimes while nine have done away with it for petty crimes. Furthermore, 34 countries have abolished it either in law or practice. Only 58 countries, today, retain this extreme form of punishment. Abolitionist nations include Argentina, Australia, Canada, Cambodia, Columbia, Uzbekistan, Bhutan and Nepal and the entire European Union to name a few. Retentionist countries include the US, China, Japan, Singapore, India, Pakistan, Bangladesh, Nigeria, Arab Countries and North Korea among others.

Critics who oppose capital punishment are of the view that when the State cannot give life, it has no right to take it away either. The death penalty is irreversible. If a convict turns out to be innocent, his execution cannot be undone. In a modern democracy, they point out, punishment should not be retributive. The State should try to reform and rehabilitate the criminal in order to enable him/her to live in the society amicably with other human beings.

According to a bench headed by Justice HS Bedi in September 2009;

“We must say with the greatest emphasis that human beings are not chattel (slaves) and should not be used as pawns in furthering some larger political goal or political policy.

The condemned prisoner and his suffering relatives have a very pertinent right in insisting that a decision in the matter be taken within a reasonable time, failing which, power should be exercised in favour of the prisoner.”

Undoubtedly, the Tamil Nadu Assembly’s resolution and the subsequent Madras High Court ruling has certainly helped advocate a paradigm shift on discourse involving touchingly emotive themes like crime and punishment and humanising death penalty. This quality shift, one hopes, in its ‘irreducible minimum’ would enrich the on-going process of judicial activism and at the top of it Indian judicial perspective, perhaps significantly.

* Written by Samyak Sibashish, presently pursuing Political Science (Hons.) and a CLAT 2012 Aspirant

In this blogpost Shipra Prashant, student, UPES, Dehradun, writes on the present situation of space laws and the International Treaties and Agreements which govern them.

 Like any other International Law, Space law too is a soft law. Soft law means that the applicability of the law isn’t unconditional, soft law has to be accepted in a way that it does not infringe the sovereignty of the country. Space law is applied in the same manner.

The demand for the codification of space law

The need for the establishment of Space Law arose when a number of space activity started happening. The first man-made spacecraft, Sputnik-1, started orbiting in the year 1957. Before the formation of Space Law treaties, the stepping stone was the formation of International Astronautically Federation (IAF) in the year 1951, which was a non-governmental organisation. This was the initial step towards providing world-wide general access of the space to all the countries, and encouraging international cooperation in space law.

After the formation and expansion of IAF, the need to codify Space Laws was enormously felt. The jurists as well the government of different countries felt the need to define the jurisdiction of space and form a set of guidelines that could be formed and abided by other countries for peaceful exploration of Outer Space. There was a need for further exploration since Outer Space was proving to be lucrative in the field of telecommunication, communication, navigation and other technologies and for military purposes as well.

Treaties governing the Space Law

The United Nations has played a major role in development of Space Law. There are five international treaties and agreements that govern activities in space. However it has to be noted that these treaties are only legally binding for those member states that have signed and ratified them.

Regarding peaceful Exploration: Outer Space Treaty of 1967

The Outer Space Treaty of 1967 defined nation’s rights to the Moon and other celestial bodies, before anyone travelled beyond Low Earth Orbit (LEO)[1]. It was adopted by the General Assembly in its 2222^th resolution during its XXI session on 27^th January 1967, and was entered into force on 10^th October 1967. The Moon Treaty as it was thereon referred as, was the first treaty that was ratified in the ambit of Space Law.

The basic objective of the Moon Treaty was to provide a basic guideline for exploration, the wording of the treaty is such, and the exploration and use of outer space shall be carried out in interest and benefit of all countries and shall be the province of all mankind. The focus therefore was on peaceful agreement and cooperation between the countries in order for peaceful exploration.

Other features of the Treaty were-

• It shall be free exploration by all the States. There shall be no jurisdiction of any state over the State.
• State is restricted from placing any nuclear weapons of mass destruction in the Orbit or on a celestial bodies or place them in the outer space in any other manner.
• The moon and any other celestial body shall be used exclusively for peaceful purposes.
• States shall be responsible for any activities that are carried out by their nation whether governmental or non-governmental entities.
• State would be liable for any damage caused by their space objects.

Regarding cooperation between the states in helping the Astronauts: Agreement on the Rescue of Astronauts, the Return of Astronauts and Return of Objects Launched into Outer Space, 1968

In the year 1968, another treaty was enacted- Agreement on the Rescue of Astronauts, the Return of Astronauts and Return of Objects Launched into Outer Space. The agreement was considered and drafted by the legal subcommittee from 1962 to 1967. The consensus on the agreement was reached by the General Assembly in 1967, and the treaty came into force in December 1968. The main aim of this treaty was to promote cooperation in between the states in case it is needed to rescue the Astronauts or return of any space object. It states that the states should take possible steps to rescue and assist astronauts in distress and have them immediately return to the launching state, and the state shall upon request of the launching state help and assist in recovering space objects.

Liability of nations to pay the compensation for damage caused by the space objects on the surface of the Earth or in the Outer Space: Convention on International Liability for Damage Caused by Space Objects

The Convention on International Liability for Damage Caused by Space Objects was taken into consideration and negotiated by the legal subcommittee from the year 1963 to 1972. The Convention was then entered into force in September 1972, it elaborates upon Article 7 of the Outer Space Treaty. It provides that the Launching State shall be liable to pay for Compensation for damage caused by its space objects on the surface of the Earth or in the Outer Space. The Convention provides for protocol for the settlement of claims for damages.

The Soviet Union, on September 18 1977, launched the nuclear-powered Cosmos 954 naval surveillance satellite. In late November, Cosmos 954’s orbit became erratic. [2] The United States had noticed the pattern and calculated that the satellite would fall in January but not in the place where it was supposed to land. Cosmos 954 crashed to Earth on 24^th January, 1978, landing in the west coast of Canada. Due to the fact that the satellite consisted of radioactive material, USA offered Canada to help in cleaning it. The same was offered by USSR but Canada declined their offer. Canada then claimed 6 million dollars from Russia, which was later settled by Russia for 3 million dollars. This is one of the leading cases in regard to the Liability Convention.

The Registration Convention: The Convention on Registration of Objects Launched into Outer Space

Another convention that was accepted was the Convention on Registration of Objects Launched into Outer Space; it was adopted by the General Assembly in 1975 and came into force on 15^th September 1976. After the establishment of Outer Space Treaty, The Rescue Agreement and The Liability Convention there was a desire expressed by the states to assist in the identification of space objects, the Registration Convention was enacted; it gave scope for expansion in issues relating to State Parties Responsibilities concerning their space objects. The Secretary- General was requested to maintain the register and ensure full and open access of the information.

The Moon Treaty: The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies

The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies is also known as the ‘Moon Agreement’. It was adopted by the General Assembly in the year 1979. However it was not ratified by Austria until 1984, therefore, it came into force in the year 1984. The agreement elaborates upon the provisions of the Outer Space Treaty also it asserts on the fact that the Moon and its natural resources are the common heritage of the mankind and that an international procedure should be established to curb its exploitation.

General Assembly Resolutions

Every year, the General Assembly adopts a resolution in regard to “International cooperation in the peaceful uses of outer space”. While these resolutions adopted by the General Assembly are not legally binding, many resolutions dealing with issues related to outer space offer valuable guidance to states on their conduct of space activities. Though, many resolutions related to the Outer Space have become widely accepted by the international space community.

Dispute Settlement in Space Law

There is no strict regime for dispute settlement in the case of Space Law. The issues in this regard range from Public International Law and policies of regional as well as international organisations; to juridical dispute settlement and global governance. The legal aspect concerning activities in outer space also transcends the usual focus of international law on states. The development of a framework for dispute settlement is thus becoming necessary for Space Law.

There is a need for a more comprehensive and detailed laws with regards to Space law, since space activity has considerably increased in the past, the laws are lacking in tackling the issues with such advancement in technologies

[1] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205.

[2] N.Y. Times, Jan 29, 1978, at A8 , col. 1