This article is written by Riya Yadav, a student of Symbiosis Law School, Nagpur. This article seeks to explain the meaning and importance of prima facie evidence in India.
It has been published by Rachit Garg.
Table of Contents
Introduction
The term “prima facie” refers to a legal scenario in which the prosecution presents enough evidence to prove that the defendant is guilty. If you work in the legal field or know anything about legal terminology, you’ve most likely heard of this term. Understanding such legal terms and their significance is essential, whether you run a small business or a large corporation. This is why we will examine the fundamentals of this term and attempt to understand its significance in the court of law.
What is prima facie evidence
The term “prima facie” is derived from Latin and means “at first sight” or “at first appearance”. This is adequate to establish a fact or raise suspicion until it is disproved in court. A prima facie case is a cause of action or defence that is sufficiently established by a party’s evidence to justify a verdict in his or her favour, although even if the case is determined to be prima facie, this does not guarantee that judgement by the court will be in favour of the plaintiff. A prima facie case is one in which the pre-trial evidence is reviewed by a judge and found to be sufficient to justify a trial. In legal terms, it has been given a specific meaning and is used in both civil and criminal law. It can be used to imply that the evidence presented by a litigant in support of its claims is sufficient to warrant a favourable order and to shift the burden of proof to the opposing party.
In an adversarial proceeding, the party initiating the case, or the plaintiff, is tasked with presenting a prima facie case—that is, presenting enough evidence to the adjudicating authority to support the claims raised by it. Once the plaintiff successfully establishes a prima facie case and summons this up, the burden of proof shifts to the opposing party, who must now provide evidence to disprove the plaintiff’s case. However, if the plaintiff fails to establish a prima facie case, the opposing party may not even be required to present evidence to the contrary and may obtain a favourable order because it is the duty of a person asserting a claim to present evidence and prove their case.
Prima facie evidence in civil cases
The burden of proof is placed on the plaintiff in civil litigation, that is the plaintiff is the one who presents the cogent evidence for the court to deem the claim valid. If the plaintiff fails to provide sufficient evidence to support its claim against the defendant for the alleged injury, the court will dismiss the case before it goes to trial. If the court determines the existence of a “prima facie case”, the defendant must show evidence to refute the assertions made in the prima facie case in order to win the lawsuit.
The complaint that is filed with the court needs to provide background information on why the lawsuit was made and what the injury was. It should also include the manner in which the defendant may have caused or contributed to the damage/injury. Before the trial can begin, the court must determine whether the case is valid and has enough merit to warrant a hearing. The judge must determine whether enough evidence exists to establish a presumption in favour of the plaintiff during the initial examination of the claim, which occurs during the pre-trial hearing. Once the judge has determined this, the case is regarded to have prima facie evidence. After this, the case is permitted to go into further trial.
According to sub-section (1) of Section 26 of the Civil Procedure Code, every suit shall be instituted by the presentation of a plaint, and according to sub-section (2) of the same section, facts must be established by affidavit in every plaint.
An example of prima facie evidence in a civil case
An ABC Bookstore may file a claim against one of its suppliers, XYZ, if XYZ fails to deliver an order of books, causing the bookstore to lose customers. The company needs to demonstrate “at the initial or prima facie stage” that the supplier violated the contract, affecting the company and its customers. Once ABC Bookstore has successfully established a prima facie case, the burden of producing evidence or proof shifts from ABC Bookstore to supplier XYZ. Now, supplier XYZ must demonstrate that the allegations levelled against him are baseless or insufficient to warrant a conviction. For example, he can present supporting evidence to show that, according to the contract, the payment had to be made in advance for the order and that only after the payment was made would he supply the books, implying that the ABC bookstore did not make the full advance payment by the date specified in the contract, and hence he did not supply the books.
Prima facie evidence in criminal cases
In a criminal case, the prosecution bears the burden of proof (with the exception of special cases like cases under Unlawful Activities (Prevention) Act, 1967 (UAPA), Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) etc., in which the defendant must ‘prima facie’ demonstrate his innocence). This implies that the prosecution must demonstrate this beyond a reasonable doubt in order to proceed with the trial of the defendant for the offence. As a result, the level of proof that the prosecution must meet in the prima facie case stage is lower than the requirement for proving the defendant’s guilt. A prosecution simply needs to present credible evidence in support of each element of a crime to establish a prima facie case.
A prima facie case is an early assessment for a court to assess if the prosecution may proceed to fully prosecute the defendant for the crime. However, in order to get a conviction, the prosecutor must establish the defendant’s guilt on each of the factors beyond a reasonable doubt. As a result, even if a prosecutor can build a prima facie case on all components of a crime at the pre-trial stage, the prosecution must still show the defendant’s guilt beyond a reasonable doubt at the trial stage.
According to Section 226 of the Code of Criminal Procedure, 1973 when the accused appears or is brought before the Court in pursuance of a commitment of the case, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. Also, Section 161 of the same Code, titled “Examination of witnesses by police” provides for oral examination of a person by any investigating officer when such person is supposed to be acquainted with the facts and circumstances of the case. The object and purpose of Section 161 are to collect evidence regarding the commission of an offence by examining and recording the statements of the material witnesses in respect of the commission of the offence.
Example of prima facie evidence in criminal cases
Suppose person ‘A’ accused person ‘B’ of ‘theft’. If the State, on behalf of A, only presents evidence that B came to his residence, the theft charge will be rejected. B would not even have to produce any evidence and may instead request an acquittal based on the State’s inability to prove a prima facie case of theft. However, if the State exhibits proof of B’s presence on his premises and stealing certain objects for which A has accused B of theft, such as eyewitness testimony, then the standards of a prima facie case for that aspect of the crime may be met and B may be charged with theft. Now, even if B has proof indicating an eyewitness was wrong, he or she cannot move for a verdict right away and must offer that evidence in rebuttal during the trial stage.
Implications of prima facie evidence
The implications of prima facie evidence are as follows:
The plaintiff must present prima facie evidence and must present a plausible enough case to proceed to trial.
If the plaintiff does not present adequate evidence that a crime was committed or could have been committed by the defendant, the party being sued, then the judge can dismiss the case.
The notion of prima facie is not limited to the pre-trial phase of a case. It can be used as a general standard of evidence.
The goal of this phase of the trial is not to prove that the defendant is guilty, it is merely to show the court should proceed with the trial. Consequently, the judge merely decides whether the case will go to trial without making any kind of judgement about the guilt of the defendant.
While the standard of proof for prima facie evidence is low, it is nevertheless an important part of the legal process. By making the plaintiff present a basic version of their cases, people are protected against frivolous or abusive lawsuits.
In both civil and criminal cases, the defendant is being given additional legal protection. In criminal cases, the defendant is protected from abuse by law enforcement and the state. In civil cases, the defendant is protected from their fellow citizens’ frivolous suits. This is especially important to keep those who are wealthy or socially privileged from intimidating or coercing those who are more vulnerable through the threat of litigation. Several prima facie examples show how this standard of evidence can be used.
A litigant seeking discretionary relief such as a temporary injunction must also show a prima facie case, for which the courts are only obligated to examine the essential facts and not dive into the merits of the case.
Judicial pronouncements
Some of the important judicial pronouncements with regard to prima facie evidence are as follows:
Supreme Court of India in Marin Burn Ltd. v. R.N. Banerjee (1958) pronounced that when determining whether a prima facie case has been established, the relevant consideration is whether it was possible to arrive at the conclusion in question based on the evidence presented and whether that was the only conclusion that could be reached based on that evidence.
The Supreme Court of India inJayendra Saraswati Swamigal v. State of Tamil Nadu (2008), held that one person’s confession that he was involved in the conspiracy along with others is not sufficient toestablishg a prima facie case.
In the General Electric Company of India Ltd. v. the Fifth Industrial Tribunal, West Bengal and Ors. (1990), it was stated that the phrase “prima facie” means at first sight or as far as it can be judged from the first disclosure. A prima facie case means that the evidence presented on the record would allow the plaintiff’s desired conclusion to be reached. A prima facie case has progressed through sufficient proof to the point where it would support a finding if contrary evidence is ignored.
Supreme Court of India in Kehar Singh and Ors v. State (Delhi Admn.) (1988) that the fact that the two defendants who caused the death were seen isolating themselves on the roof and trying to hide as well as their conversing about the assassination with the family members, was enough to form a prima facie case. This is the case of the assassination of India’s former Prime Minister, Mrs Indira Gandhi.
Conclusion
The Indian judiciary has elaborated on the meaning of the phrase ‘prima facie case’ to the point where it now has a legal meaning and standing. Despite this, the degree of what constitutes a prima facie case varies from case to case and lacks a concrete definition due to the fact that each case is unique. What constitutes a prima facie case is determined by a court of law’s discretion because a judicial officer adjudicating a matter must be satisfied with the averments made and evidence presented by a litigant/State. To decide whether a prima facie case has been established, the relevant factor is whether the conclusion in question was conceivable based on the evidence presented, rather than whether that was the only result that could be reached based on that collection of facts.
Frequently Asked Questions (FAQs)
What does prima facie exactly mean?
Prima facie means ‘on the face’ or ‘at first glance’. In law, it can refer to either evidence that is regarded plausible but susceptible to refutation or a stage in a pre-trial proceeding in which it is assessed whether the plaintiff/complainant has a sufficiently plausible case to go to trial.
Are prima facie and res ipsa loquitur similar?
The Latin phrase res ipsa loquitur means the object speaks for itself. The primary distinction between prima facie and res ipsa loquitur cases is that prima facie cases require numerous pieces of evidence to be valid and go to trial. The doctrine of res ipsa loquitur, on the other hand, states that the facts of the case are self-evident and do not require any supporting evidence to make them so.
How do you establish a prima facie case?
A prosecution merely needs to present reliable evidence in support of each element of a crime to establish a prima facie case. To achieve a conviction, the prosecution must show the defendant’s guilt on each factor beyond a reasonable doubt.
What is the prima facie proof standard?
According to the prima facie standard of proof, a party must produce adequate evidence that a certain claim is true at the surface level. The subject is still being debated and even refuted. As a result, the prima facie standard of proof is low.
What is an example of prima facie reasoning?
During the pre-trial phase of a case, the State, on behalf of the complainant, in a murder case may be required to present prima facie proof that a person was murdered, maybe by the defendant. Thus, prima facie evidence would include evidence that the deceased was murdered, that the victim seemed to die as a result of the murder, and that the defendant was capable of committing the murder.
This article has been written by Ziya ur Rahman Karimi, a law student at Jamia Millia Islamia, New Delhi. This article comprehensively discusses everything about the right to repair. This right provides consumers freedom to repair and fix devices according to their own choices. It also provides a detailed analysis of the current status of the right to repair movement in India and across the world.
It has been published by Rachit Garg.
Table of Contents
Introduction
Suppose you spent over a thousand rupees on your laptop a few years ago, and now it barely holds a charge. Without a new battery, you’re connected to an outlet, which is both inconvenient and counterproductive to the purpose of a laptop. However, it turns out that a new battery is impossible to install in any case, so you feel compelled to spend another $1,000 on a new laptop, despite the fact that your old one functions perfectly fine elsewhere. This is an almost universal experience, regardless of whether it involves a laptop, a phone, or a car.
For a long time, technology companies have made their products difficult, if not impossible, to repair. This is a major drawback for consumers, since if their phone stops operating due to a faulty component, they may have to purchase an altogether new device if the part is unavailable or impossible to replace.
The right to repair is a rising global movement that aims to ensure that consumers are able to fix and repair their own devices; otherwise, the producer of those gadgets restricts the consumer to use only their offered services. This right gives the user access to a manufacturer’s hardware and software tools, as well as the choice of repairing the device himself or taking it to the manufacturer’s service centre or to a third party.
While global society is seriously concerned about the growing quantity of solid waste (particularly electronic components), the primary debate over the right to repair has been a topic of discussion worldwide. In July this year, the United States passed the Fair Repair Act, 2022, on the right to repair. The United Kingdom and European Union passed legislation such as Right to Repair Regulations and Right to Repair regarding this right.
Recently, in India, the Department of Consumer Affairsannounced the formation of a committee under the chairmanship of Nidhi Khare, Additional Secretary of the Department, to develop a comprehensive framework for the right to repair. In this article, we will discuss the meaning, features, and importance, as well as the merits and demerits of the right to repair.
What is the right to repair
The term “right to repair” refers to legislation that would enable consumers to independently repair and modify their own consumer goods (such as electronic, automotive, or farm machinery like tractors) where the manufacturers of such products would otherwise require the consumer to use only their offered services by limiting access to tools and components or by putting up software barriers to prevent independent repair or modification. These challenges typically increase consumer expenses or make users replace equipment rather than repair it.
Consumers spend a large amount of money on devices that become obsolete in a few years. This, in addition to the problem that repairing these products is either excessively expensive or impossible, forces people to abandon them and replace the old product with a new one. The jurisprudence governing the right to repair is that the consumer can continue to use a product/device that he purchased for money for its expected lifespan without incurring significant costs, and the company should not force the consumer to get it repaired only from it, directly or indirectly, without making components available in the market.
A smartphone’s battery, for example, is likely to degrade with time and reduce the device’s performance. If the manufacturer deliberately does not manufacture the battery for older devices, the consumer has to pay hundreds of rupees to purchase a new phone.
Thus, as per the right to repair, customers must own a product completely after purchase and be able to repair or modify it easily and at a reasonable cost, instead of being dependent on the whims of manufacturers for repairs.
Features of the right to repair
The following are some key features of the right to repair:
Make information available
Everyone should have reasonable access to manuals, schematics, and software updates. Software licencing should not restrict support alternatives and should clearly state what is included in a sale.
Make parts and tools available
Third parties, including individuals, should have access to parts and tools for servicing devices, including diagnostic equipment.
Allow unlocking
The government should make it legal to unlock, adapt, or modify a gadget so that the owner can install custom software.
Repairable design
Devices should be designed in a way that allows for repair. Thus, basically, the right to repair requires manufacturers to disclose product details to customers so that they can repair devices by themselves or through third parties rather than relying on the original producers. It also unifies trade between Original Equipment Manufacturers (OEMs) and third-party buyers and sellers, resulting in the creation of new jobs.
Why do we need the right to repair
Manufacturers, deliberately or not, use a variety of techniques to make repairs difficult, such as proprietary screws, refusing to disclose repair documentation, or glueing pieces together. Sites such as iFixit (which also sells some of our favourite repair equipment) have sprung up over the years to provide product ‘teardowns’ and user repair documentation. However, a few articles or a handful of dedicated YouTube lesson videos cannot cover the vast array of products available today.
More and more products are becoming unrepairable. For example, a product may be impossible to open without destroying it (wireless earbuds are notorious for this, though novel solutions are occasionally developed), and may have no third-party parts options (Nintendo was recently sued over “Joy-Con drift,” a problem that requires Switch owners to send in their controllers to Nintendo for a fix), or may deny owners the ability to install custom software to extend its life after the company ends support (smart-home devices struggle with this, such as when Sonos tried to sunset support for older devices, or when Nest disabled the Revolv Hub). Even appliances, which have long been regarded as repairable, are increasingly incorporating computer chips, potentially making them more difficult to repair in the future.
Consider Apple as an example of how this type of thing typically plays out. For repairs, Apple has the Genius Bar. However, not every city in the country has an Apple Store, and getting to one in rural areas can take hours. After years of opposition, Apple ultimately opened its iPhone parts and tools to third-party repair shops in 2019 (and expanded it to Macs in 2020), but Apple continues to manufacture machines that aren’t simply upgradable or repairable by users after purchase. Right-to-repair legislation would oblige Apple, at the absolute least, to make those repair parts and tools, as well as basic documentation, available to everyone.
Benefits of right to repair
This will help small repair shops, which are an important part of local economies, grow.
It will contribute to the reduction of the continent’s vast mountain of electrical waste (e-waste).
It will save consumers’ money.
It will help to achieve circular economy goals by extending the life of appliances and improving their maintenance, reuse, upgrading, recyclability, and waste handling.
Right to repair movement in India
India is about to become the latest country to provide citizens with the right to repair their own items, including mobile phones, other electronics, automobiles, and farm machinery.
The Department of Consumer Affairs has taken an important step toward building an overall framework for the right to repair in order to stress the LiFE (Lifestyle for the Environment) movement through sustainable consumption in India.
The goal of developing a framework for the right to repair in India is as follows:
To empower consumers and product buyers in the local market,
To harmonise trade between original equipment manufacturers and third-party buyers and sellers
To emphasise developing sustainable product consumption; and
To reduce e-waste.
Thus, when this legislation is implemented in India, it would be a game changer for product sustainability and a driver for job creation through Aatmanirbhar Bharat by permitting third-party repairs.
In this regard, the Department has formed a committee to be chaired by Smt. Nidhi Khare, Additional Secretary, Department of Consumer Affairs, Government of India. Shri Anupam Mishra, Joint Secretary, Department of Consumer Affairs, Justice Paramjeet Singh Dhaliwal, former Judge of the Punjab and Haryana High Courts, former President of the Punjab State Consumer Disputes Redressal Commission, Prof. (Dr.) G.S. Bajpai, Vice-Chancellor, Rajiv Gandhi National University of Law, Patiala, Prof. Shri Ashok Patil, Chair of Consumer Law and Practice, and representatives from various stakeholders such as ICEA, SIAM, consumer activists, and consumer organisations as members.
The committee held its first meeting on July 13, 2022, and recognised key sectors for the right to repair. Some of the sectors that were recognised in this meeting are farming equipment, mobile phones/tablets, consumer durables, and automobiles/automobile equipment.
During the first meeting, it was also taken into consideration that companies avoid publishing guides that can help users easily make repairs, this was one of the key topics raised in the discussion. Spare components are under the exclusive responsibility of manufacturers (regarding the kind of design they use for screws and others). Monopoly on repair techniques violates the “freedom to choose” of the customer. Digital warranty cards, for example, ensure that a customer loses the right to claim a warranty if they purchase a device from a ‘non-recognized’ retailer. The controversy, which is surrounded by Digital Rights Management (DRM) and Technological Protection Measures (TPM), is a huge relief for copyright holders. Manufacturers promote a culture of ‘Planned Obsolescence’. This is a system in which the design of any gadget is such that it only lasts a certain amount of time before having to be replaced. When contracts fail to transfer full authority to the buyer, the legal rights of the owners are affected.
It was also decided, during the discussions, that tech businesses should provide complete information and access to manuals, schematics, and software updates, and that the software licence should not limit the transparency of the product on the market. Parts and tools for servicing devices, including diagnostic tools, should be made available to third parties, including individuals, so that minor flaws in the product can be fixed. Fortunately, our country has a thriving repair service sector as well as third-party repairs, including those who cannibalise products to provide spare parts for the circular economy.
Though the right to repair is yet to be recognised as a statutory right in India, certain judicial pronouncements have indirectly recognised the right to repair.
Shamsher Kataria v. Honda Siel Cars India Ltd. 2017
In this case, the Commission discussed the idea of vertical agreements, which included exclusive supply agreements, exclusive distribution agreements, and refusals to deal.
Facts
The informant in the case claimed that the Opposite Parties (OPs) engaged in anti-competitive practises, such as not making genuine spare parts of automobiles manufactured by some of the OPs freely available in the open market and that most OEMs (original equipment suppliers) and authorised dealers had clauses in their agreements requiring authorised dealers to source spare parts only from the OEMs and their authorised vendors.
Issue
Are these agreements restricting consumers’ right to repair and are anti-competitive?
Judgement
The Commission held that the contested agreements violated Section 3 of the Act, noting that the network of such agreements permitted OEMs to become monopolistic participants in the aftermarkets for their model of cars, establish entrance hurdles, and foreclose competition from independent service providers.
The Commission further ruled that Commission, such a distribution structure allowed OEMs to seek exploitative prices from their locked-in consumers, increase revenue margins from the sale of auto component parts as compared to the automobiles themselves, and have potential long-term anti-competitive structural effects on the Indian automobile market.
Furthermore, the Consumer Protection Act, 2019 also recognises that a monopoly on repair methods violates the customer’s ‘right to choose’.
Thus, this Act and the decision of the Competition Commission of India in the above-mentioned case partially acknowledge the right to repair.
Right to repair in other countries
Several countries, including the United States, the United Kingdom, and the European Union, have recognised the right to repair. The regulatory framework began in the United States with the passage of the Motor Vehicle Owner’s Right to Repair Act in 2012. This Act requires automobile manufacturers to provide consumers with the necessary documents and information to allow them to repair their vehicles.
European Union
The European Union brought in right to repair Rules in 2019 to establish a circular economy of digital products, giving users access to repair tools to repair consumer appliances. The EU, on the other hand, is still working on broadening the scope of these product repairs, and active legislation is in the works. Meanwhile, France imposes a mandatory repairability score by implementing the new Anti-Waste Law, 2020, which ranks products based on their ease of repair and informs users how to repair them before purchasing them.
United Kingdom
In July 2021, the United Kingdom implemented the Right to Repair Regulations, which require manufacturers to make spare parts available to their customers and third parties. Manufacturers of machines, refrigerators, dishwashers, and television screens are required by European Union repair laws to make spare parts of these appliances available to professional repairmen for up to ten years after the product is first released.
Australia
In Australia, even though there is no specific right to repair legislation, they have Repair Cafes, which are free gathering places where volunteer repairmen gather to share their skills with people who bring in their goods.
United States
In the United States, the Fair Repair Act was passed in June this year. The legislation requires companies, at least in the state of New York, to provide patented tools and remove software restrictions that prevent users from repairing their own products.
Planned obsolescence
The first person to use the term ‘planned obsolescence’ was an American industrial designer named Brook Stevens. This term refers to the standard marketing practice for any gadget to be made so that it can only be used for a limited period of time before being replaced. In order to increase sales and maximize profits, this practice favours sellers and tries to force them to unduly influence consumer decisions.
Planned obsolescence is a business approach that involves manufacturing gadgets in such a way that they are only usable for a limited period of time. Performance-reducing software and the manufacturing of structurally unsound devices are examples of planned obsolescence strategies. Examples of intentional obsolescence include irreplaceable oximeter batteries, non-refillable printer cartridges, short-life light bulbs, and so on. This refers to the reality that technology is designed to last just a limited time before being replaced, putting a significant strain on the environment through wasting resources. Many global corporations, like Apple and Samsung, have used intentional obsolescence as a marketing strategy.
Thus, planned obsolescence not only targets the consumer’s right to repair but also results in e-waste caused by the massive consumption of electronic items as a result of product design failure. The proliferation of e-waste has raised serious environmental issues, particularly in India, which is officially ranked as the world’s third largest e-waste creator.
Since there is currently no particular legislation against planned and strategic obsolescence, the introduction of right to repair laws could alleviate such environmental strain by creating room for reusing things, prohibiting planned obsolescence, and sustaining a circular economy.
Reaction of tech companies to the right to repair movement
Amazon, Apple, Microsoft, and Tesla are all among the companies that oppose the movement, claiming that it directly threatens the protection of intellectual property and trade secrets.
Microsoft and Google have also spoken out against the right to repair movement, claiming that it allows unvetted access to sensitive diagnostic data and software.
Elon Musk’s Tesla has stated that such an act would weaken the system’s cybersecurity and make it vulnerable to attacks.
Reasons why the tech giants are against right to repair legislation
There are numerous reasons why the right to repair is significant. However, there are six valid arguments against the right to repair. They are as follows.
1. Users’ safety
User safety is one of the strongest arguments against the right to repair. Technology is no longer as simple as it once was; it has become more complicated, interconnected, and difficult to repair without professional assistance or expertise. In other words, your attempt to repair your smartphone is not the same as your grandfather’s attempt to repair a cassette player.
Digging into your tech devices can be hazardous because they contain combustible materials and sharp metal parts. Any type of serious mishandling can necessitate immediate medical attention. Furthermore, when user fixes go wrong and cause harm to the device owner, it can have a significant impact on a company’s image because its products are perceived as a hazard, as was the case with the exploding Samsung Galaxy Note 7.
2. Shrinking tech
Every year, technology shrinks, and repairing intricate hardware becomes less obvious to the average person. While older technology could be repaired with common tools available at any hardware store, modern technology is smaller and more nuanced in comparison. They frequently necessitate the use of specialised tools that are not widely available and may even necessitate licencing.
However, there is no doubt that some companies could go a step further and deliberately make it more difficult for people to repair their products. The most notable example is Apple, which uses proprietary pentalobe screws in iPhones, which prevents other repair shops from prying the devices open; they must be Apple-certified to receive the specialised tools.
3. Efficiency
Modern technological products are designed to be as efficient as possible within their given form factor. Take, for example, smartphones. You only have so much room to make the product as good as possible.
To make it more easily repairable, you would have to reduce its efficiency by accommodating modulation and repairability. While you may be willing to make that sacrifice, OEMs cannot afford to do so in an environment where their products are constantly compared to others.
It’s not uncommon for us as consumers to see benchmark scores to judge a device’s performance and dismiss it immediately if it falls below a certain level. This is why manufacturers find it difficult to sacrifice efficiency in order to accommodate repairability.
4. Competition
Making your items more repairable and durable is not a sustainable long-term business strategy in a competitive market where every client wants to receive the most value for their money.
If buyers could use your products for years by simply repairing them every now and then, you wouldn’t have a steady stream of repeat customers. And without recurring customers, it will be difficult to generate enough revenue to survive, let alone grow.
However, one way to combat this is to see a significant increase in subscription models, in which the user pays a monthly fee for a variety of ongoing benefits. Consider Amazon Prime, Apple TV, Spotify Premium, and so on.
While the manufacturer has no control over the hardware after the product is sold, the software can be manipulated after the sale. Original equipment manufacturers (OEMs) profit even if customers keep their devices for a longer period of time.
5. Demand and supply
We have seen that making items more repairable reduces their effectiveness, but the consequences don’t stop there. A lesser-known argument against the right to repair is based on simple economics. OEMs cannot release inferior products to their competitors and expect their customer base to remain silent.
When the demand for a commodity falls due to a decrease in quality, the price falls as well, because fewer people are willing to buy it. When the price of a commodity falls due to insufficient profits, there isn’t enough incentive for sellers to sell it. There must be a balance.
Without it, market competition will decrease, making things worse for consumers because they will be forced to buy products from a select few businesses that have survived, robbing them of their freedom of choice. This collapse game ultimately harms the consumer.
6. No incentive to innovate
We all know that technology gets cheaper and better over time due to economies of scale and innovation, but that principle is based on one fundamental assumption: manufacturers have enough incentive to consider taking on the risk and cost of research and development (R&D).
OEMs constantly push for new cutting-edge technology because they have a clear advantage in doing so. In a world where people are used to repairing their gadgets rather than upgrading them, innovation will be an afterthought rather than a priority.
After all, if you, as a manufacturer, don’t see any benefit in innovating because no one will buy those new products anyway, you would not take the financial risk and bet your company’s survival on it. In such a situation, you would prefer to just leave things the way they are.
Why should right to repair laws be enacted
Pricing
Since there are no service manuals, manufacturers have a monopoly over repair shops and can charge customers exorbitant fees.
Tackle planned obsolescence
The right to repair law could decrease environmental pollution by prohibiting planned obsolescence and promoting a circular economy. Consequently, companies would be compelled to manufacture long-lasting gadgets.
Right to choose
The monopolisation of repair methods violates customers’ right to choose, as recognised by the Consumer Protection Act of 2019.
Boosting the local economy
The right to repair allows for the establishment of small repair shops in the local area, which increases the revenue of the country and produces enough jobs.
Environment protection
The most important factor in supporting right to repair laws is the environment. Around 40 million tons of electronic waste are generated every year. The right to repair law will limit the disposal of electronic equipment into landfills and encourage the prudent use of resources for environmental protection.
Furthermore, the production of an electrical item is a highly polluting process. It uses polluting energy sources, such as fossil fuel, which has a negative impact on the environment. Improving the longevity of electrical equipment will have a positive impact on the environment, and more repairable technology will aid in tackling the increasing problem of toxic electronic waste since more people will be able to reuse older devices that simply need repair to function properly.
Problems involved with providing the right to repair
Security and privacy
Third-party access to products based on their patented technology may raise security and privacy problems.
Lobbying by big tech giants
Major technology companies such as Apple, Microsoft, Amazon, and Tesla have lobbied against the right to repair. They continuously say that they are working on improving their own durability.
For example, in 2022, Apple took additional steps to reduce its contribution to e-waste. Its free, independent repair provider service is currently available in 200 countries.
After being criticized for making it nearly impossible to replace the battery in prior generations, Microsoft has highlighted how it enhanced the battery and hard drive of its third-generation Surface Laptop.
Other methods to prevent independent repair
Big companies frequently use measures that effectively prohibit other businesses from repairing their products. For example, digital warranty cards ensure that a customer loses the option to claim a warranty if they purchase a product from a ‘non-recognized’ retailer.
Suggestions for the Indian scenario
First, in order to improve consumer welfare, India should implement a dedicated repair law. In Shamsher Kataria v Honda Siel Cars India Ltd (2017), the Competition Commission of India (CCI) ruled that limiting access to spare parts to independent automotive repair units through an end-user licence agreement was anti-competitive. The CCI found that the practice was harmful to consumer welfare.
Second,it is important for India to learn from good regulations and practises in other countries, such as the prevalence of repair cafés in Australia.
Third,India should realise that well-drafted legislation will not only protect the right to repair but may also help the country achieve a much-needed balance between intellectual property and competitive rules. Furthermore, it will boost the circular economy by enhancing appliance life span, maintenance, reuse, upgrading, recyclability, and waste disposal.
Conclusion
In light of the above discussion, it can be concluded that the right to repair is important for both the user and the environment. Even if a manufacturer does not benefit as much as the consumer, it can still develop newer and better products while still allowing users to repair existing ones. Technology advancements and reparability are not always contradictory. Moving toward a world where technology is not constantly discarded due to a single malfunctioning part would assist in reducing e-waste and environmental problems while also giving consumers choice over the things they buy and the ability to fix such devices.
Frequently Asked Questions (FAQs)
What is the origin of the right to repair?
The concept originated in the United States, where the Motor Vehicle Owners’ Right to Repair Act of 2012 compelled manufacturers to release the necessary documentation and information so that anybody may repair their vehicles.
Which is the first country to pass a law on the right to repair?
The Digital Fair Repair Act was passed in the United States in June of this year, and with this Act, the United States became the first country to pass a law on the right to repair. The regulation requires manufacturers, at least in the state of New York, to provide patentable tools and abolish software limitations that prevent customers from repairing their own devices.
Is there any right to repair laws in India?
Currently, there is no regulation regarding the right to repair in India. However, as per an official statement issued by the Ministry of Consumer Affairs, a committee has been formed to develop a framework for the ‘right to repair’, chaired by Nidhi Khare, who is the additional secretary of the Department of Consumer Affairs. The committee held its first meeting on July 13th this year and identified important sectors where the consumer’s right to repair would be crucial.
What will be included in the Right to Repair Act in India?
According to the Centre’s statement, a crucial aspect of the regulation is that tech companies should provide complete information and access to manuals, schematics, and software updates, and the software licence should not limit the transparency of the product in sale. Parts and tools for servicing devices, including diagnostic tools, should be made available to third parties, including individuals, so that minor flaws in the product can be fixed.
The Act would also define the time limits within which a firm would be accountable for providing consumers with cheap and viable repair options. It is also looking at overseas models that hold repair workshops in order to teach a wider number of people how to repair products. It could also impose restrictions prohibiting corporations from erecting hurdles that would break a gadget in the event of a third-party repair effort.
How would the right to repair be beneficial for consumers in India?
Customers could able to get their own set of tools in order to repair their smartphones and computers, as well as comprehensive instruction manuals. Users might also choose whether to take their product to an authorised repair facility or repair it themselves. This could ensure that the lifetime cost of a device is reduced if repairs are more affordable.
It is important to highlight, however, that the right to repair would also include planned obsolescence, which would give products a specific number of lifetime years within which the right to repair would be recognised by law. This might be aimed at minimising e-waste and developing a circular economy of organised product refurbishment.
Why is the right to repair movement important?
Consumers frequently spend large sums of money on these appliances and devices, only to discover that they become obsolete within a few years of purchase. A smartphone’s battery, for example, is likely to degrade with time and reduce the device’s performance. If the battery cannot be replaced, the consumer is compelled to return the handset and pay hundreds of rupees for a new phone.
Fragile and irreparable components also shorten a product’s lifespan. Support for functional devices and non-standard parts is also being phased out by manufacturers. Most modern technology is made up of irreparable and irreplaceable parts, especially when it is powered by powerful computer chips.
With devices becoming increasingly difficult to fix, campaigners and consumer organisations are promoting the right to repair movement, which wants to allow people to repair their electronic products themselves or through third-party professionals.
Any individual who is subject to legal action of any kind can pursue or defend the case in question by either retaining the services of an attorney or by appearing in court on their behalf. It is not simple to conduct a case without having professional legal training, and many people may find it difficult to grasp the legal laws and processes that are followed in court. Because of this, it is strongly recommended that litigants who are representing themselves independently obtain the counsel, or help of a qualified legal expert. If the parties are going to represent themselves in court, the parties must be aware of the many rules and regulations that they are required to follow to ensure that the parties and their case are following the rules and regulations. The parties are expected to do research and learn about the relevant laws, case law, procedures, and rules that will be used in court.
Rights and responsibilities of parties when they represent themselves in the court
Rights of parties in the court
If the parties are the people involved in a court matter, they have the right to either retain the services of a lawyer or represent themselves in court. Before settling on a decision, the parties should give some thought to the pros and cons associated with each possibility, even though this is a matter of personal preference.
Parties who want to represent themselves in court are responsible for managing all court proceedings and petitions on their own, without the assistance of a lawyer. It is standard procedure to refer to parties as litigants-in-person (LIP) in legal proceedings. Parties in their capacity as LIPs shall be held to the same standard as attorneys. The parties should not anticipate that the court will make any exceptions or reduce any of its procedural rules and requirements for the parties.
The parties should become familiar with the relevant laws and legal concepts, as well as the types of defences that are available to them under the law.
Each side is responsible for making their own legal preparations as much as they can.
At each hearing, parties are required to present their arguments and evidence.
They are needed to be sure on following all the regulations, the judge’s directives, and the legal processes.
What should the parties consider
Parties should represent themselves only if they are sure.
Concerning the conduct of the legal proceedings.
Invest time and energy into preparing your argument for presentation in court.
The parties argue their case in front of the court and the prosecutor or the attorney for the defence.
The parties might want to talk to an attorney or hire one to assist them to determine whether they wish to represent themselves in court or hire a lawyer to do it for them. This could help the parties make a more informed choice.
Can the parties represent themselves in criminal and civil cases
Self-representation in a criminal case
Yes, if the parties are accused in a criminal case, the parties can be represented in their own case.
It is always suggested that it is best to seek the advice of an experienced criminal lawyer to help the parties to better decide whether they wish to proceed as a self-represented accused or to be represented by legal counsel. Because criminal charges often carry heavy penalties for an individual, it is always best to seek the advice of an experienced criminal lawyer.
Can you engage a lawyer to represent you halfway through the proceedings
During the proceedings, the parties may consult with legal counsel whenever they see fit. Should any party desire to do so, they could request an adjournment (also known as a postponement) of the proceedings by orally alerting the judge while the case is still being heard in court. If the party’s motion for an adjournment is granted, the parties will be sent a mention slip that details the location, date, and time of the subsequent court hearing. The party’s attorney that you have retained will then represent you in the following hearings and processes once you have contracted their services.
Pre-trial conference
A Pre-Trial Conference is scheduled (PTC) if the parties proceed to court. A PTC determines if the case is ready for trial. Self-represented accused must attend PTC with the prosecution. The parties and prosecution notify the court what evidence they’ll present on trial day. Parties can conduct a Criminal Case Disclosure Conference before trial (CCDC). The court will schedule the trial after the PTC. Meanwhile, prepare for trial and court dates.
A CCDC helps trials go smoothly by forcing both sides to explain their reasons and evidence at the outset. Only limited scenarios can employ CCDC. CCDC participation is voluntary for parties. If the parties participate in CCDC, they may learn about the prosecution’s case before trial. If the parties choose CCDC, the court will give you and the prosecution regulations to observe. This involves the prosecution presenting its “Case for the Prosecution,” which is the parties’ evidence. Defence cases must be written in English and delivered to the court and prosecution. Each party will receive a copy of the prosecution’s Case for Prosecution and any other written statements they made during the investigation. The prosecution’s case and written statements should be reviewed by both sides before the trial. Supreme Court CCDCs occur weekly. Attendance is restricted.
Preparing for trial and court hearings
Before the trial, it is up to the parties to make sure that all the witnesses show up on the day of the trial. If the parties don’t know if a witness will show up, they can ask for a Summons to a Witness to be sent to that person at the Crime Registry. This costs $20 per summon that is sent out. A court process server will give the document to the people who need to see it.
Both parties must have all necessary evidence before the trial. Documents and photographs must be duplicated at least four times. The original document will be delivered to the court, with duplicates for the prosecution, each witness, and themselves. A judge might utilise digital evidence like WhatsApp communication in court. Make sure the document or photo maker is in court. If not, the document may not be utilised in court.
What is a prosecutor’s case
If the party should want to assert its right to a trial, the prosecutor will initially submit the case to the court. This can be accomplished by offering an overview of the state’s case against the defendant. After that, the prosecution will use the Examination-in-Chief to call upon its witnesses and have them deliver their testimony. The parties should take notes for their reference while paying close attention to the questions made by the prosecution and the responses offered by the witnesses during the trial. Following the conclusion of the prosecution’s Examination-in-Chief, you will have the opportunity to engage in what is known as cross-examination with the witnesses presented by the prosecution.
Because the party is representing themselves in this matter, it is up to the party to formulate appropriate questions that he feels will be beneficial for his defence. The party is not permitted to ask the witnesses any questions that might frighten, insult, or embarrass them in any way. Party could also want to offer the witness any documented or photographic evidence to question what the witness said during the Examination-in-Chief. This might be done if you have any such evidence.
End trail
The party and the prosecutor will make closing arguments before the judge. This permits both sides to offer facts and arguments to persuade the judge to rule in their favour. The prosecution will give its final arguments after you. In your closing argument, the party must focus on the defence and explain why the court should believe the party who is self-representing. The party can also discuss trial evidence. If the party can’t recall what was stated during the trial, the party can get the Notes of Evidence from the Crime Registry on Level 1 of the State Courts. The Notes of Evidence are word-for-word transcripts of what the judge, prosecution, defence, and witnesses stated during the trial. Note that the Notes of Evidence won’t be available immediately after all the evidence has been given because the trial stages didn’t occur on the same day. Closing arguments cannot include fresh evidence.
Self- representation in civil cases
Yes, any individual who is the target of a civil lawsuit can defend or pursue the matter on their own by representing themselves in court. The parties have the option of either being represented by a lawyer or representing by your own in the case.
If a party chooses to defend themselves, the court will hold them to the same standards as lawyers. In preparing and conducting your lawsuit, the party must follow the same rules. The party must follow laws and procedures. The party should also realise that the court will not retry the case once determined. A civil case normally begins with a summons. If there’s no real disagreement regarding the law or how to read a document, an original summons should be issued. If there’s a factual party, a summons is issued. A lawsuit must be served. If not, getting a default judgement afterwards can be difficult. If a party intends to defend, they must tell the court and the plaintiff. The party must file an appearance memo within a particular time. parties’ defence must be filed with the court and given to the plaintiff or his party. A judgement could be entered against the party if the other party doesn’t submit or serve the party a memorandum of appearance or defence it is called a default judgement. Each party must submit a claim. True. The court may dismiss a lawsuit if a party misses details or the party’s claim is unclear.
Pre-trial and interlocutory application
The party must follow court norms during pre-trial. It comprises exchanging papers with the opposite party, gathering evidence to prepare your case, compiling, and exchanging witness statements, etc. Each step complies with the time. If a party makes a mistake in pleadings, they can modify it once without court permission. Changing filings after the close of pleadings requires court authority. A civil litigation attorney can assist you to follow the proper procedure and include accurate information in your filings.
Party may file or answer interlocutory applications. Interlocutory applications involve summonses and affidavits. A party may need an order to reveal their records. A party may deplete assets to avoid using them to settle a court’s judgement. The party may seek a Mareva injunction. Preparing and filing interlocutory applications correctly and on time can affect the result of your case. After pre-trial issues are resolved, the case will be tried. Parties must have exchanged all evidence-in-chief affidavits and documentary proof. If a party misses or fails to disclose evidence, they may not be able to use it at a party. The other party may be represented by skilled civil litigation lawyers who know the rules and processes. They use them to benefit their clients. Complex litigation. Errors are costly. Self-defence may cost more than hiring an attorney.
Presenting, testing evidence, and closing arguments in the court
The parties must file their opening statement a few days before trial. The opening statement must quickly outline the facts and law. A skilled lawyer knows the law and how to apply it. Before the party approaches the court, familiarise yourself with the court etiquette. The Court is intimidating. If the party is unfamiliar with the court, they may want to hire a lawyer. A civil litigator will help you build a compelling case. They can employ documentary evidence instead of evidence-in-chief. They know how to ask questions and use documents or witnesses to refute the other party’s proof. They know when to object to opposing counsel’s query. A seasoned lawyer knows what’s relevant. They can make a compelling argument. When closing arguments are presented by a professional litigator, he or she will summarise your case and focus on the key issues. A closing argument should cite legal authorities. A civil litigation lawyer will be conversant with recent court judgments, laws, and other elements supporting your case. Civil lawsuit parties are urged to settle in Singapore. If you are considering accepting an offer, you may want to consult a civil lawyer. They know how to examine the case and decide.
What are the challenges faced by self-representation in courts
People who seek to represent themselves in court have had access to more resources in recent years, including toolkits, information, books, and online sites created by the judicial system in Singapore. If the party doesn’t obtain the outcomes they desire and end up losing the case in court, representing yourself in court might not be the greatest decision, even though doing so will save you money. Challenges to be further discussed:
Face off of a non-legal person against a legal professional in court
You may have a lot of work if the opposite party has an attorney. Lawyers are trained experts who know how to perform in court, argue their cases, and present them. Many lawyers will aid you even if they’re against you. Their major role is to help their client. Going slowly is smart. Unless it’s essential, you should always consult a lawyer.
Self-incrimination
The party may say or sign things in court that incriminate and hurt the case if the party represents itself. The party may not know how to win or defend a legal lawsuit. Provocation may be the only defence, but the law does not consider it a mitigating element. The court may believe you overreacted and rule against you. Experienced lawyers know what the law and court want and what to leave out or add to your case for court.
Emotions
The party is still a human with feelings, even if they want to keep them in check when representing themselves. In tough instances, it may be difficult to keep them cool, especially if the other side presents erroneous hypotheses or versions of events. Emotions hinder judgement and undermine the parties’ arguments. Instead of pointing out the opposing side’s weaknesses, the party might use emotional arguments. the party may even cry in court.
Rules and practice directions
Self-represented litigants must know and observe the regulations. The court wouldn’t let the party handle the case however he/she wants to just because the party doesn’t have it. The party can’t claim ignorance of judicial procedure. Even if the party knows that he/she will be losing the trial, the party should know court rules and procedures. The judge can’t bend the rules for the party. The judge in the case may give the party guidance about the court, but won’t instruct he/she on what to say or do to win.
Conclusion
Having discussed the self-representation of parties in Singapore court, we have listed the rights and responsibilities of each party while representing in court, what the party should be considering and the rights of the parties in court.
Detailed observation and steps to understand the pros and cons of self-representation in a criminal and civil case from pre-trial, arguments, interlocutory application, preparing & hearing of the case, presenting, testing evidence and close arguments have been stated. Looking at the above situation we can state that self-representation consumes a lot of time and needs a lot of knowledge of the rules and procedures of court which is difficult for a common man to fight his case. The difficulty of the case differs from a criminal case to a civil case.
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This article is written by Sanjana Santhosh, a law student at Christ (Deemed to be University), Bengaluru. The article explains the concept of well-known trademarks and its allied concepts with the help of case laws.
It has been published by Rachit Garg.
Table of Contents
Introduction
Industrial property and copyright are two classic divisions of intellectual property (IP). Patents, trademarks, industrial designs, and place of origin designations are considered part of industrial property. Works of art, music, and literature are all regulated under copyright laws. Performers’ rights in their performances, phonogram makers’ rights in their recordings, and broadcasters’ rights in their radio and television programs are all covered under copyright laws. In general terms, intellectual property rights are described as a collection of exclusive rights given to the right holder. The phrase ‘intellectual property’ refers to certain legal rights rather than actual intellectual activity. It is crucial to understand these intellectual property rights, how to defend them, and eventually how to capitalise on them. The history of trademarks can be traced back to the start of commercial activity. The marks are as old as humankind and religious history. Researchers have discovered archaeological items from places like ancient Egypt with symbols etched on them for superstitious and religious purposes. ‘Potters marks’—used to distinguish a specific vessel’s creator (potter)—appeared in artefacts from the Greek and Roman eras. The studies pertaining to “potters marks” are well-known among those who specialise in investigating the cultural history of marks. “Well-known mark” is a broad phrase that includes connections established by a trademark, such as goodwill, image, and prestige. ‘Trademark’ is a legal concept and symbolises a distinctive mark or symbol to which a holder can get an exclusive right.
What are well-known trademarks
Section 2(1)(zg) of the Trademarks Act, 1999, defines a well-known trademark as a mark that has gained enough recognition among a significant portion of the public who utilise such goods or obtain such services that the use of the mark in relation to other goods or services is likely to be interpreted as denoting a connection between those goods or services and the person using the mark in connection with the first mentioned goods or services.
Trademarks and other commercial logos traditionally identify the commercial derivation of goods and services while assuring consumers and other stakeholders of a specific standard. Exclusive rights to trademarks and trade symbols have become more crucial for any player wishing to compete globally in building a strong commercial brand. The revised Trade Mark Rules, 2017 have introduced a new process that enables the Registrar to declare a specific brand to be ‘well-known.’ In accordance with the new regulation, a trademark owner may submit a form TM-M application with a request to the Registrar for the designation of the mark as ‘well-known.’
In contrast to lesser-known trademarks, whose goodwill and reputation are only protected within a certain geographic region and within a narrower range of goods and services, well-known trademarks have nationwide and cross-category protection. The Trade Mark Registry is prohibited by law from registering any mark as a trademark that is deceptively similar to one of the well-known trademarks. Well-known marks have the ability to draw customers, workers, financiers, etc. and may be utilised to establish enduring connections with customers. A well-known mark can be viewed as an intellectual phenomenon, signifying a firm’s capacity to increase value for customers and other stakeholders. Well-known marks are rapidly being acknowledged as a significant asset by businesses today. They serve primarily as means of communication and transport for the value that businesses have amassed. It’s crucial to understand that a well-known mark’s worth is the product of significant investments and efforts that require strong legal protection. Recognizing the growth or history of the development of well-known marks is crucial for appreciating their significance in the modern period. The history of famous marks lays the foundation for the TRIPS agreement, the Paris Convention, and finally the WIPO recommendation.
Legal provisions related to well-known trademarks in India
Trademark and Merchandise Act, 1958 was the law that controlled trademarks in India prior to the passage of the Trade Marks Act of 1999. Section 47 of the Trademark and Merchandise Act allowed for defensive registration of well-known marks as well as passing-off lawsuits against unauthorised use of well-known trademarks until the Trade Marks Act went into effect on 15th September 2003. According to Section 47(1) of the Act, when a trademark made up of an invented word has become well-known in relation to the goods for which it has been registered and used, its use in connection with other goods is likely to be interpreted as indicating a connection between those goods and the person authorised to use the trademark in connection with the first mentioned goods; the mark may then be registered in his name as a defensive trade mark in respect of those other goods upon application in the prescribed manner by such proprietor, and while so registered, shall not be subject to being taken off the register in respect of those goods.
It is clear from reading the aforementioned section that the likelihood of deceit was taken into consideration when evaluating whether a well-known mark could be registered under this specific clause. Through a remedy against passing off, Indian Courts have preserved rights in well-known trademarks even without any protective registration. In Sunder Parmanand Lalwani v. Caltex India ltd. (1969), the Bombay High Court upheld Caltex India’s legal opposition to the registration of the CALTEX trademark for watches. In this instance, Caltex Ind. Ltd. was the owner of the trademark Caltex for gasoline, kerosene, etc. The mark was very well-known and had a reputation for being monopolistic in the market. Although the court determined that Lalwani was the owner of the mark for watches in India, registration was denied because there was a chance that consumers would be misled or confused and because Lalwani had not established that CALTEX was a truly appropriate trademark for watches.
When the appellant-opponent had been using ‘BATA’ as well as ‘BSC’ as a combined trademark in respect of footwear, registration of a trademark incorporating an “artistic device with letters BSC” for sewing machine parts was permitted in Bata India Ltd. v. Deputy Registrar of Trademarks (2004). The respondent adopted BSC in 1975 and focused on developing the mark’s reputation and goodwill in the Punjab State. The appeals board stated that as the appellant had not independently utilised the BSC mark and the nature of the items was entirely distinct, there was no possibility of mistake or deceit.
In Caterpillar Inc. v. Jorange (1997), the plaintiff was the owner of the trademarks ‘CAT’ and ‘CATERPILLAR’ for heavy equipment used in the construction and agricultural industries. Since 1996, they have sold a variety of clothing items, including sweaters, coats, sunglasses, and athletic products. The plaintiff relied on the transborder reputation developed from its use of the brand in other countries even though it had not yet introduced the trademark on clothing in India. Additionally, they asserted that when well-known brand names were utilised on various products, confusion would result. The defendant was prohibited by the court from using the trademarks “CAT” and “CATERPILLAR.” The instances mentioned above served as some of the significant legal precedents that allowed the Trade Mark Act of 1999, which became effective as of September 2003, to codify a well-known mark.
Section 11 of the Trademarks Act, 1999 : relative grounds for refusal
Before a trademark is recognised as a well-known trademark, several factors listed in Section 11 of the TM Act must be taken into account:
Knowledge of the purported well-known mark’s recognition in the relevant segment of the public, which denotes knowledge acquired through trade mark promotion.
The plaintiff in Rolex S A v. Alex Jewellery Pvt. Ltd. (2009) was the proprietor of the well-known trademark Rolex for Watches, which enjoys widespread recognition. Defendants operated a company selling imitation jewellery under the Rolex brand. The Delhi High Court concluded that the public segment that uses Rolex watches that fall into a specific category in terms of price is very likely to believe that jewellery bearing the trademark Rolex has some connection to the plaintiff after analysing the definition of a well-known trade mark under Section 2(1)(zg).
Courts have been accommodating in relation to the establishment of proof of the degree of use, whether high or low on the part of the plaintiff, regardless of the length of time the trade mark has been used.
In the case of Indian Shaving Product Ltd. v. Gift Pack (1998), more often known as the Duracell Ultra case, the Delhi High Court found that even though the plaintiff had made significant sales and had actively advertised, the necessity to prove a significant period of sale was not relevant.
The duration, scope, and geographic region of any trademark promotion, including any advertising or publicity, displays at trade shows, and displays of the goods or services where the trademark appears. The Courts should give advertising forms the consideration they deserve in cases of passing off involving well-known marks.
In the Whirlpool case (1998), the Supreme Court of India determined that the mark was a well-known mark and that the product’s advertisement was sufficient to reach the relevant segment of the public, despite the fact that the company’s product was completely absent from the Indian market.
The length and geographic scope of any trademark registration under this Act, or any publication for trademark registration, to the degree that they reflect the use and recognition of the brand.
The track record of rights in that trademark being successfully enforced, in particular the degree to which that trade mark has been acknowledged as a well-known trade mark by any court or registrar under that track record.
Plaintiff sold beauty products under the trade name “Aveda” in his business. On the other hand, the defendant began utilising the name “Uveda” as their trademark when they began marketing their own line of cosmetics. The Delhi High Court considered the plaintiff’s beauty product’s insignificant foothold in India (as their supply was limited to a single spa in India, Rishikesh). Therefore, there is very little chance of confusion in people’s minds because the defendant, Dabur, has a much larger consumer base than the plaintiff. As a result, the court only made a minor suggestion to the defendant to reduce the likelihood of confusion by increasing the font size of their name.
Intermediaries in the channels of distribution.
The business group that deals with the services or products that the trademark covers.
A trade mark must be considered a well-known trade mark for registration under this Act if it has been found by a court or registrar that it is widely known in at least one relevant segment of the public in India.
A trademark that is similar to or identical to a “Well-known mark” cannot be registered for dissimilar goods or services, according to Section 11(2) of the Trademark Act. On the other hand, Section 29(4), which deals with trademark infringement, makes no specific mention of well-known marks and only refers to a mark having a “reputation in India” that signifies intent to infringe.
Section 12 of the Trademarks Act, 1999 : honest and concurrent use
A trademark is meant to indicate that the goods come from one source and one source only, hence using the same brand simultaneously by two or more people for the same items is completely against the intent of trademark law. However, Section 12 of the Trademark Act of 1999 contains provisions to handle extraordinary situations resulting from distinctive persons’ lawful concurrent use of the same or a similar mark. The Registrar may allow the registration of identical or similar trademarks by more than one proprietor for the same or similar goods and services (regardless of whether any such trade mark is already registered) in the case of honest concurrent use or other special circumstances that, in the Registrar’s opinion, make it proper to do so, subject to such conditions and limitations, if any, as the Registrar may think fit to impose. This provision is similar to Section 12 (3) of the Trade and Merchandise Marks Act 1958, with the difference that services are included, the word “similar” is used instead of “nearly resemble each other,” and the phrase “similar products” is used instead of “depiction of merchandise.”
Section 12 permits the registration of identical or similar trademarks for the same or similar goods by more than one proprietor. It is an exception to the Section 11 rule that prohibits the registration of similar marks and supersedes the Section 11 rule that simplifies denial. It is made clear in the enclosure that the exclusion applies to unregistered marks as well by the phrase “whether any such trademark is presently enrolled or not.” The use of the phrase “he may allow registration” indicates that allowing concurrent registration is optional. The registrar has the authority to impose any restriction or limit when allowing registration. Aspirants are responsible for setting up a registration instance under the Section. The other provision of the statute must obviously be complied with before registration might be permitted on the basis of honest concurrent use. Due to the application’s lengthy waiting period, the group cannot profit from subsequent users. Since the clause calls for honest concurrent usage, it follows that the claimed use must also be concurrent and honest. Concurrent use does not mean that the petitioner’s use has overlapped with the rival’s registration; rather, it means that the petitioner’s use must be contemporaneous with the rival’s use of the registered mark. “Concurrent” does not have the same value as “contemporaneous”.
The purpose of Section 12 is to recognise and make note of the fact that a significant open can realise that are two similar marks being used due to a concurrent user’s realisation of their similarity. As a result, the user will be directed to inspect the marks more thoroughly than usual before recognising them. This requires that the same open have both markings in the marketplace and the ability to assess the degree of chaos that can be guaranteed from the similarity of the marks, which is greatly indicative of the degree of an open hindrance. Such use would not be considered concurrent use if the opponents’ and seekers’ products were sold through different commercial channels. There hasn’t been a chance to assess what level of confusion is standard in people on the whole when the competitors’ mark hasn’t been used or when the groups’ products haven’t been marketed side by side in the same market. The registrar may decide to enrol the mark in such a case under the qualifier “or other unusual circumstances.” Two significant instances helped establish the defence of honest concurrent usage. First, it was determined in the case of Dent v. Turpin (1861) that two users of the mark who shared a common predecessor had a separate right to request an injunction against a third party who was using the mark unlawfully. Second, in Southorn v. Reynolds (1865), the Dent case was cited in order to draw conclusions about other facts that were similar, but neither of these instances dealt with a dispute between contemporaneous users.
The law regarding honest concurrent use with reference to Section 12(3) of the Trade & Merchandise Marks Act 1958 being Ejusdem Generis to Section 12 of the current Act was established in the case of Kores (India) Ltd. v. M/s Khode Eshwarsa & Son (1985). The Bombay High Court ruled that the mentioned factors must be taken into account in order to determine a trade mark’s eligibility for registration as an honest concurrent use mark:
The concurrent user’s honesty.
The amount of concurrent use of the trademark demonstrated by the petitioner in relation to the time, place, and volume of trade as well as the items in question.
The likelihood of confusion caused by the similarities between the opposing party’s and applicant’s trademarks, as an indicator of the general good or general annoyance.
Whether any confirmed cases of confusion exist.
The potential degree of inconvenience to the parties involved.
Since the 1994 modification to the Trade Mark Act mandates that the owner of a prior mark must oppose a registration application in an opposition hearing, the effect of the honest concurrent user argument has been diminished to a greater extent.
Process of filing a well-known trademark
The High Court of India, the Intellectual Property Appellate Board, and the Supreme Court of India are all appropriate referral points for determining whether or not a trademark has attained a “well-known” status. However, the situation has changed since the Trademark Rules, 2017 were officially published. According to Rule 124 of the Trademark Rules, 2017, any interested party can submit an application online by filling out Form TM-M and attaching the required documents, such as a statement in support of the application that includes the reasons the trademark should be recognised as well-known and paying the required fees. In addition to the fact that well-known trademarks do not need to be used in India in order to be registered, the fact that the protection is extended regardless of differences in the field of business, goods, or services is also an advantage for multinational companies seeking comprehensive brand protection in India.
Selection of a trademark
A trademark should be something truly special if one wants it to stand out in the marketplace. Secondly, knowing what social group an individual falls into is crucial. Registration of the trademark can be sought in 45 different “classes” of goods and services at the moment. Products fall into classes 1-34, whereas services fall into classes 35-45.
Mark search
Once the mark is settled, an individual should look it up in a database to see if it is comparable to any other trademarks that are already in use. The Controller General of Patents, Designs, and Trademarks has a webpage where one can undertake this research on their own. A public search feature is available on the site. Once the link is selected, a subject area has to be selected and a database search has to be conducted. The alternative, however costlier, is to seek the advice of an attorney. If the trademark is challenged, the total cost of legal representation will be less.
Application
Multiple classes, series, or collective trademark applications can be filed in a single application. A special form (TM-A) needs to be filled out for this. Registration in more than one class for the trademark is possible with this form. There are two price tiers for submitting this form:
Nine thousand or ten thousand rupees
This category includes everyone other than sole proprietors, very small businesses, and individuals. The filing fee is Rs. 9,000 if the form is submitted electronically and Rs. 10,000 if the form is submitted in person to the Office of Trademarks.
Four thousand five hundred or five thousand rupees
The fee for filing the form electronically is Rs. 4,500, while the fee for filing the form manually is Rs. 5,000.
Typos or grammatical errors on the form must be avoided, as doing so could cause the application to be delayed or even rejected. The form must be completed and provide a 9-by-5-cm image of the trademark. Two copies of the entire file must be submitted with the original paperwork.
It can be submitted online, in person, or through an agent. If filed electronically, a confirmation will be received of the submission right away; whereas if it is emailed or faxed, the waiting period may extend up to two weeks.
Online trademark registration procedure
Step 1: Search online for a brand name
Since the majority of the generic names are likely already in use, adopting a brand name that is both wild and quirky is a good strategy. In addition, one needs to do some fast research to avoid choosing a brand name that’s already in use. The best thing is to make up one’s own catchy business name by combining existing terms.
Step 2: Trademark application preparation
The following materials must be presented alongside the application for online trademark registration:-
The applicant’s rights in the trademark and the grounds for claiming fame for the brand must be laid forth in the case statement.
Proof of the applicant’s rights and claim, including but not limited to evidence of the applicant’s use of the trademark, proof of any applications for registration made or registration obtained, proof of the applicant’s business’s annual sales turnover based on the subject trademark, proof of the number of actual or potential customers of goods or services under the said trademark, proof of the applicant’s publicity and advertising of the said trademark, and proof of the expenses incurred as a result of such publicity and advertising.
Copy of the judgement of any court in India or Registrar of Trademarks, if any, recognising the trademark as a well-known trademark.
Details of successful enforcement of rights, if any, relating to the said trademark to the particular extent to which the trademark is recognised as a well-known trademark.
PDFs with a resolution of 200 x 100 dpi on A4-sized paper are preferred for submission with the statement of the case as evidence/supporting material, and the overall file size must not exceed 10 MB.
Step 3: Application to register the brand
The registration application can be submitted in two ways: manually or electronically (form TM-A). In the case of “manual filing,” one will have to travel to one of the Registrar offices of Trademarks in major cities throughout India including Delhi, Mumbai, Kolkata, Ahmedabad, or Chennai in order to physically hand over the application for registration. After that, the waiting period is usually around 15–20 days for the confirmation of receipt to arrive. However, in the event of an electronic filing system, one will receive an immediate online acknowledgement of the submission. After approval has been received from the Trademark Office, one may start using the TM sign next to their brand name.
Step 4: Consideration of the brand name application procedure
After receiving the application, the Registrar of Trademarks will verify compliance with the law and whether or not the proposed trademark name meets the requirements. Additionally, the trademark being registered must be unique and not be comparable to any other brands that are already in use or that are in the process of being registered.
Step 5: Brand posted to the Indian Trade Mark Journals
After the trademark has been reviewed and approved, it will be published in the official Indian trademark journal by the Registrar of Trademarks. It is imperative that no opposition be filed within three months (i.e., 90 days, or 120 days in some situations) following the publication date for the trademark registration application, as this is the most crucial stage of the process. In the absence of any objections, the Registrar of Trademarks will move forward with issuing a Trademark Registration Certificate.
Step 6: Trademark opposition
If any third party files an objection to the trademark within three months of its publication in the trademark journal, the Registrar of Trademarks is required by law to provide the applicant with a copy of that opposition notice. Within a few months of receiving the opposition notice, the applicant must file a counter-statement in response. The trademark application will be regarded as abandoned and denied if the counter statement is not submitted within the allotted time of 2 months. If the brand name doesn’t face opposition within three months, the applicant can skip this phase and move forward with filing for a Trademark Registration Certificate.
Step 7: Trademark opposition hearing
This procedure may be skipped in the absence of any trademark opposition. However, the Registrar of Trademarks will forward a copy of the applicant’s counter-statement to the person opposing the trademark registration if one submits it within two months of receiving notice of opposition to the trademark.
Both parties will need to produce evidence to back up the claims. After both parties submit evidence to the Registrar, they will be given a chance to be heard. The Registrar will rule on whether or not to approve the application for a trademark after hearing from both parties and reviewing any relevant information. After reviewing the trademark application, the Registrar of Trademarks may decide to award registration.
Step 8: Obtaining the trademark registration certificate
If no objection is filed within the 90-day deadline, or if the application is accepted following a trademark opposition hearing, the Registrar will grant the applicant a trademark registration. The Registrar will issue the Registration Certificate, officially confirming the trademark.
A registered trademark allows one to use the ® sign next to their brand name in legal documents and online directories.
Status of application of trademark
The application submission confirmation email will provide an allocation number. This allocation number will provide access to an online status checker for one’s application. This process might take anywhere from 18 months to two years, depending on the complexity of the application. This might take longer than expected if there is a hitch. Since applications are given higher priority, the sooner they are filed, the longer the process takes. Furthermore, one can use the TM sign next to their mark if the applicant receives their allocation number even if the application has not yet been granted.
Trademark registration
A trademark registration certificate will be issued by the registrar once a trademark has been accepted. The registration and protection of a trademark will be confirmed in this manner. The registration period starts on the application date and lasts for 10 years. A trademark can be renewed once its term has expired. It is possible to keep renewing trademarks indefinitely. Having a trademark in India does not grant any special rights anywhere in the world.
Important facts on trademark registration
One of the most precious assets of any business may be a trademark. It serves as a means of identification and makes a substantial contribution to improving the company’s reputation. A trademark is a distinguishing visual element, such as a word, name, number, label, logo, or arrangement of colours. It serves as a distinguishing feature and aids consumers in recognising a specific brand or business. The rules pertaining to trademarks and their registration are governed by the Trademark Act, 1999. The Controller General of Patents, Designs and Trademarks, (Office of the Registrar of Trademarks), Ministry of Industry and Commerce, Government of India, registers trademarks in India.
Important things to know about registering a trademark:
A pictorial representation
There are a wide variety of trademarks that can be registered. Some examples are as follows: – Word Marks, Service Marks, Logos and Symbols, Shape of Goods, Series Marks, Collective Marks, Certification Mark, Geographical Indicators, Pattern Marks, Sound Marks, Colour Marks, Three Dimensional Marks.
Intangible assets
As a form of intellectual property, a trademark offers several advantages to a business. A registered trademark is an intangible asset that may be sold, licenced, and disseminated.
Legal shield against infringement and other damages
Legal recourse is available to the owner of a trademark in the event of any infringement of the owner’s logo, brand, or phrase that bears the trademark. Any person or business that uses the trademark without the owner’s consent may be subject to legal action from the trademark’s owner.
Trademark search
In order to ensure that a trademark is unique, one should conduct a trademark search. There are two options for conducting this search: the official government database known as the Indian Trademark Registry, or the website of a private company offering this service.
Selection of class
There are 45 distinct industries that make up the local economy. The term “class” is used to designate each industry. Every trademark must be filed in the correct classification. There are 45 categories in total, 34 of which pertain to products and the remaining 11 to services.
Transparent and clear registration requirements
The process of registering a trademark is entirely optional. However, if a trademark is registered, that proves conclusively that the trademark owner is the one who really went through with the registration process. The party that successfully registered the trademark will be given the benefit of the doubt in any legal proceedings.
Credibility
Trademark registration can remain in effect for up to ten years before it has to be renewed. One year prior to the trademark’s expiration is the absolute limit for starting the renewal process. If it doesn’t happen, the trademark will be taken away. In the event of cancellation, the trademark can be restored by filing the appropriate paperwork with the relevant trademark office.
Symbols used in trademarks
Trade and Service (SM)
This indicates that the trademark registration application has been filed but has not yet been processed. It serves as a cautionary notice to anyone who could infringe upon the protected work. Since the application has not yet been authorised by the relevant authorities, it has no definitive legal significance.
The letter ‘R’ symbol
Once a trademark application has been granted, one can use the registered trademark ‘R’ symbol to showcase a brand’s accomplishment. A registered trademark means that any unauthorised use of the mark is illegal and subject to legal repercussions.
The use of the ‘R’ sign is optional. However, the trademark owner is safeguarded in the event that a counterfeiter copies his goods in such a way that he needs to sue the counterfeiter to get his money back. This is due to the fact that the burden of proof is with the trademark owner, who must show that the infringement knew the brand was registered and yet used it without authorization.
The ‘C’ symbol
The ‘C’ symbol is commonly used to indicate that the owner of a creative work possesses the copyright. Some examples are art, photographs, videos, books, and computer programs.
The copyright holder’s name and the year of the work’s initial publication in the nation where it was copyrighted should accompany the sign. When it comes to registering a trademark, there is a lot of information that one needs to understand. The application procedure is complex, so each candidate should study it thoroughly. Therefore, there are several advantages to registering a trademark when done carefully.
Benefits of trademark registration in India
A trademark is a special indication used to identify a business’s goods and services. It might take the form of text, a logo, a number, or even a colour combination. With the help of the Trademarks Act of 1999, one may register a brand as a trademark.
The use of a trademark helps businesses and their customers to easily identify their goods and services in the marketplace. However, it’s important to remember that trademark registration is not possible for generic terms.
A trademark, in addition to being distinct, should be memorable and straightforward to use in order to increase product sales and customer loyalty. There are several benefits to registering a trademark:
When a trademark is registered, it receives the legal status of intellectual property and the protections accorded to such works. When a trademark is registered, the owner gains the exclusive right to use that mark in commerce in connection with the ‘Class’ of products or services that the mark identifies. The trademark application process enables the use of the TM symbol on items. The inclusion of the letter “R” after one’s trademark name indicates that it has been registered. In addition, the TM mark can only be used in relation to the specific products and/or services that are included on the registration certificate. If a holder’s trademark has been used by a third party without permission, the trademark holder can file a claim for trademark infringement in the country’s competent judicial system.
Registered trademarks are unique to the products or services they identify. The ability to set a product apart from the offerings of rivals is a key benefit of securing a trademark. Additionally, the trademark registration will aid in the identification of business products because it will be valid for the full class of goods or services represented. By distinguishing a product from others on the market, consumers will be more likely to buy it.
Customers will remember a company’s name and products because of its quality, reliability, and other positive attributes. Commonly, they’ll recognise the brand through its logo, which is a trademark. Brand awareness for goods and services is facilitated by trademark registration. Additionally, it builds consumer confidence in the product. When people are familiar with one’s brand, companies automatically gain their trust and, in turn, their business.
The registration of a trademark results in the establishment of a new business asset. For bookkeeping and tax reasons, a trademark is treated as an intangible asset. A trademark is a component of intellectual property that has value because of the goods or services it represents. Trademarks can be used in a variety of business contexts, including as the basis for sales, franchises, and assignments. In the books of accounts, trademarks can be valued or cost and depreciated, and revenue can be recorded if any was earned.
When consumers recognise a brand and link it with quality items, it increases the company’s value, goodwill, and net worth. Trademarks should convey not just commitment to excellence but also the unique selling points of items and the ethos of a company. Owning distinctive trademarks may help a company succeed. They are useful for preserving consumer loyalty and shielding the company’s reputation.
Registration of a trademark in India grants the owner the right to use that mark commercially for 10 years from the date of application. A trademark, however, can be renewed for further terms. If one wishes to grow their business outside of India or make use of the trademark there, registration of such a mark is required to be made in that country. A trademark owner having a registration in India may easily get a registration in other countries.
A trademark helps buyers identify items from a certain company, which may lead to increased sales and brand recognition. An audience may be built if one offers useful or distinctive goods. Maintaining and growing a consumer base is made easier because of the trademark. A trademark registration grants 10 years of exclusive usage, safeguarding the company’s income. Businesses can increase profits by introducing new items to an existing clientele and branching out into related markets.
Remedies for infringement of a well-known trademark
Civil remedies
Whether the trademark is registered, awaiting registration, or unregistered, a passing off or infringement complaint can be filed under the Act. The sooner legal action is taken against the infringer, the sooner the rights holder may demonstrate to the court the severity of their purpose. A delay in filing suit might impair the likelihood of getting an injunction. However, if the underlying cause of action is ongoing, the courts have treated such “new” knowledge as if it were entirely new evidence and have moved forward accordingly.
It has always been difficult for trademark owners and courts to put a price on the harm done by trademark infringement. Rights holders typically give up their claim since it is difficult to calculate damages based on the actual or anticipated loss sustained. However, Indian courts have recently begun awarding monetary damages as a means of deterring future violations of IP rights.
In order to have a civil remedy enforced, an action for infringement must be filed in a court of law. The available civil reliefs are as follows:
Interlocutory/Temporary/Ad-interim Injunction
Discretionary remedy provided to the plaintiff that restrains a party to a case from taking action until the matter is resolved;
A Mareva Injunction
A type of temporary restraining order that prevents a defendant from selling or otherwise transferring property until a trial has concluded or a verdict has been entered.
Anton Piller Order
To make sure that relevant documents and infringing items are not removed or destroyed by the defendant, an Anton Piller Order may be issued, allowing the plaintiff access to the defendant’s premises for the purposes of inspecting them, making copies of them, and removing them for safe custody.
John Doe Order
Search and seizure warrants issued by a court against defendants who have not been identified are known as “John Doe Orders.”
Permanent/ Perpetual Injunction
A permanent or perpetual injunction is a final court ruling prohibiting a person from engaging in certain acts (infringing ones) indefinitely.
Damages or Accounts of Profits
Compensation awarded to the plaintiff for losses brought on by the defendant’s actions; sometimes known as ‘damages’ or ‘accounts of profits.’ An equitable remedy known as ‘accounts of profits’ compels the defendant to pay the plaintiff the sums of money that have been earned as a direct result of the infringing conduct.
Delivery up and destruction
This occurs when the defendant either destroys the infringing items or passes them over to the plaintiff.
When it comes to trademark disputes, a civil lawsuit is the best bet for obtaining compensation. Nonetheless, merely imposing hefty punitive penalties is rarely sufficient, since the difficulty generally resides in the process of actually recovering the damages from the infringing party. While courts have been more willing to award significant sums of money in damages, they have not done much to address the second issue, which is actually getting that money back from the losing party. In a very significant way, the remedy is diminished by this.
Criminal remedies
Infringements against the Act include manufacturing or having devices for forging trademarks, using fraudulent trade descriptions, and other similar practices. The maximum sentence for any of these offences is three years in jail, with or without a fine.
Infringements under the Act are considered ‘cognizable’. Therefore, during raids, police have the authority to not only recover infringing products but also apprehend the guilty. Sections 103 and 104 of the Act govern the filing of complaints seeking criminal remedies. The Magistrate Court is where citizens can go to register complaints in order to have the police conduct investigations and raids. Following the submission of a complaint, the Magistrate will take down the details of the case and issue an order with specific instructions for the Police to follow.
The complainant must identify the infringers so that the police can investigate them, even though the order is a directive to the Police to do so. Multiple, unrelated targets might be raided based on a single allegation made against “unknown people.” After the searches have been conducted, the onus is on the complainant to follow up with the police and provide evidence that the goods confiscated are in fact fake.
Administrative remedies
In the event of trademark infringement, the following administrative remedies may be pursued:
Opposition against a similar mark
Within four months of a trademark’s publication in the Trademarks Journal, any right holder or third party who feels the mark would cause confusion or deceit among the public may file an opposition. Both sides then present evidence in support of their respective claims, and a decision is made as to whether or not the trademark should continue on the register.
Ratification of Trademark Registration
If a party is wronged and feels that a registered trademark should be removed from the register, they can seek correction, cancellation of registration, or removal. There may be trademarks on file that are no longer in use, that have expired, or that were registered without due consideration for the likelihood of confusion with pre-existing trademarks. The process for amending the register in the event of a mistake or omission is outlined in the Act.
Notifying customs of the infringement so that no products carrying the trademark can be imported or exported.
In order to safeguard intellectual property, the Indian Government can forbid the import or export of certain items under Section 11 of the Indian Customs Act, 1962. Any contraband brought in violation of this or any other legislation may be subject to seizure. If a customs officer suspects that illegal goods are being transported, he or she has the authority to conduct a search, conduct an x-ray of the suspect, and seize the items in question. If they have probable cause to believe a certain individual is involved with the fake products, they can conduct an investigation, question that person, and ultimately place them under arrest.
Customs authorities will now be able to enforce intellectual property rights over imported goods thanks to these guidelines, which are in line with border procedures mandated by the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). Right holders can register trademarks with Customs under these regulations. In accordance with these regulations, Customs officers can seize trademark infringing products at the border without a court order if they have reasonable reasons to assume that the imported items are trademark infringing goods based on prima facie evidence.
A notification by application detailing the reasons for the suspension and the consignment data is required under these Rules. The Customs authorities may file the complaint and implement necessary border control procedures after they receive the application. Once it has been determined that the goods detained have infringed the trademarks of the rights holder and that no legal proceeding is pending in relation to such a determination, Customs officials are authorised under these rules to destroy the suspended goods under official supervision, or to dispose of them outside the normal channels of commerce.
Landmark case laws relating to well-known trademarks
Cadila Health Care Ltd. v. Cadila Pharmaceuticals (2001)
Facts of the case
In this case, the appellant and respondent are pharmaceutical businesses who launched and registered medicinal drugs called Falcitab and Falcigo in 1996 and 1997, respectively. In 1998, the appellants discovered that the respondent had a product with a name and purpose similar to theirs and filed an order restricting them from further trading in the District Court of Vadodara.
The Court ruled in favour of the respondents since the two components differed in appearance, formulation, and price, and they were scheduled L products, which meant they were marketed directly to hospitals/clinics rather than to consumers. As a result, there was no room for misunderstanding. Following that, the appellants appealed to the Supreme Court. The appeal was denied by the High Court on the grounds that there was a minimal potential for passing off and no probability of confusion.
When the appellants approached the Supreme Court, it declined to investigate the legitimacy and constitutionality of the lower courts’ orders because it was under a responsibility to resolve the issue as quickly as possible. This case includes an issue of passing off, which is distinct from trademark infringement.
Issues involved in the case
Whether the respondent’s selling of the ‘Falcigo’ medicine constitutes passing off?
Whether the Cadila Pharmaceutical mark, ‘Falcitab,’ is similar to the Cadila Healthcare mark, ‘Falcigo’?
Judgement of the Court
The Hon’ble Court further stated that even if the pharmaceuticals in question are from ‘Schedule L’ and are sold directly to hospitals or clinics, the likelihood of mistakes between both drugs cannot be avoided even if prescribed by a medical practitioner.
The Supreme Court ruled that it makes no difference whether the plaintiff and defendant work in the same sector or sell identical items. It defined the following grounds for deciding a passing off case based on an unregistered trademark:
Nature of the items and markings.
Degree of similarity.
People who are inclined to purchase goods based on the mark.
Mode of acquiring products or submitting orders for them.
Any other situations that may exist.
Ford Motor Company & Anr. v. Mrs. C.R. Borman & Anr. (2014)
Facts of the case
Ford Motor Company is a company incorporated and existing under the laws of Delaware in the United States of America, with its primary place of business in Michigan. In this case, the plaintiffs had outlined in the plaint the origins of the plaintiffs’ business and how the plaintiffs’ trademark, trade name, and house mark ‘FORD’ were developed by its founder, Mr. Henry T. Ford, who founded the Ford Motor Company in 1903. The plaintiffs have also described how ‘FORD’ has evolved and diversified its company over the past more than 100 years, becoming one of the world’s largest industrial corporations.
Issues involved in the case
Whether ‘FORD’ has acquired the status of a well-known trademark?
Judgement of the Court
The trademark ‘FORD’ is particularly “well-known” among members of the sector and the general public. The long duration for which the plaintiff has used the said mark, the wide geographical area of use, the general public’s knowledge of the trademark ‘FORD’ and its goodwill and reputation as a result of the extensive promotion, publicity, and advertisement, use of the mark as well as extensive sales made by the plaintiffs under the mark in India and other countries, and the numerous registrations obtained of the mark all establish the fact that the plaintiffs’ mark ‘FORD’ has indisputably achieved the character of ‘well-known mark.’
Intel Corporation v. CPM United Kingdom Ltd. (2007)
Facts of the case
Intel Corporation (Intel) has a number of national and community trademarks including the term ‘INTEL’, including a UK trademark registration for the word mark ‘INTEL’ for computers and computer-related goods and services. In the United Kingdom, the ‘INTEL’ brand is synonymous with microprocessors, multimedia, and business software. CPM United Kingdom Ltd. has a UK trademark registration for the word mark ‘INTELMARK’, which was registered on January 31, 1997, for ‘marketing and telemarketing operations’ in Class 35.
In this case, we find that on October 31, 2003, Intel filed an application with the UK Trademark Registry for a proclamation of invalidity against the registration of the ‘INTELMARK’ trademark, claiming that the use of that mark would take unfair advantage of, or be detrimental to, the distinctive character or repute of the earlier ‘INTEL’ trademark within the meaning of Section 5(3) of the Trade Marks Act 1994 (the UK implementation of Article 4(4)(a) of the Directive).
Intel’s motion was denied, as was its later appeal to the Supreme Court. Intel then filed an appeal with the Court of Appeal, claiming that both Article 4(4)(a) and Article 5(2) of the Trademarks Directive seek to safeguard the owner of a well-known trademark from dilution. It contended that just drawing to mind the earlier mark was enough to establish a ‘link’ between the earlier and later markings, rendering the later mark invalid. The Court of Appeal submitted various questions to the ECJ concerning the considerations required to determine whether a later trademark unfairly benefited from or was damaging to the unique character or renown of an earlier trademark for the purposes of Article 4(4)(a).
Issues involved in the case
Whether the use of ‘INTELMARK’ would pose an unfair trade advantage, and be detrimental to the distinctive character of the trademark ‘INTEL’?
Judgement of the Court
The ECJ found that damage to the earlier mark’s distinctive character (also known as dilution or blurring) occurs when that mark’s capacity to identify goods or services as originating from the proprietor of that mark is impaired.
If the relevant segment of the public has not drawn a ‘link’ between the prior and subsequent marks, the latter mark’s use is unlikely to take undue advantage of, or be damaging to, the earlier mark’s unique character or renown. However, the mere presence of the relationship is insufficient to prove the necessary harm under Article 4(4).
Conclusion
Indian law recognises the inherent worth of established brands and affords them heightened protection. Regardless of how long a trademark has been there, the massive quantity of exposure it has received is a defining feature of famous trademarks. Owners of trademarks have been known to resort to utilising flashy titles, numbers, and other identifiers in an effort to distinguish and strengthen their brands. Although Section 2(1)(zg) of the Indian Trademark Act 1999 defines “well-known mark,” and Sections 11(2), (6), (7), and (9) of that Act specifically address “well-known marks” and “firms’ relative grounds for refusal of trade mark registration,” Section 29 of that Act, which addresses “infringement of the registered trademark,” does not use the expression “well-known mark” in any of its clauses, instead relying on the term “trademark” in Clause 4 makes it very confusing to find out the real intention of the legislature in regards to the protection of a well-known mark after registration- does it mean that the legislature had the intention to protect the well-known mark at the stage of registration only? If not, why is there a discrepancy in respect to the language used in sections 11(2) and 29(4)? Besides the incoherence in section 29(4), there are a few more issues that the legislature should look into and clarify:
The Act’s definition of a ‘well-known mark’ is unclear, leaving it up to the courts to decide whether or not a mark is indeed well-known since it reads as follows: “a mark which has become such to the considerable part of the public which consumes such goods or gets such services.”
The part of the law that deals with enforcing well-known marks likewise lacks a precise definition of what constitutes a well-known mark. Therefore, the protection offered to well-known marks is diminished by the lack of adequate guidelines on well-known marks for enforcement procedures.
While determining the rights of the parties, malafide adoption is not included in Section 29(4). The provisions dealing with prosecution and enforcement of well-known marks are destined to fade and, eventually, diminish the protection granted to well-known marks under the Trademarks Act, 1999 without effective legislative action on the aforementioned anomalies.
Frequently Asked Questions (FAQs)
What parameters are used to determine whether a trademark is well-known?
That the brand is widely recognised by India’s population;
Persons employed in the distribution channels of the goods or services;
Number of consumers, either actual or future, for the goods or services;
the length, breadth, and region of any use of such brand;
the industry that deals with their products or services;
The history of effective trademark rights enforcement in particular, and the degree to which the trademark has been acknowledged as a well-known mark by any court or Registrar based on that history.
Is it advisable to conduct research before submitting a trademark application?
A trademark search is highly advised prior to trademark adoption as it will reveal any already-existing trademarks that have been registered in the Trademarks Registry through application or registration. As a result, it is recommended to conduct a search on the Trademarks Registry’s official website as well as an internet search to discover whether the proposed trademark is eligible for registration.
Why is it crucial to recognise the classes for registration?
Identification of the classes in which one desires to file a trademark application is important before doing so. The appropriate classes of currently offered goods and services, as well as classes where there is an intention to use them, should both receive applications. The NICE International Classification of Goods and Services, which is divided into 45 classes, covers the specifications. It covers classes 1 to 45, with classes 1 through 34 dealing with the specifications of commodities and classes 35 through 45 with the specification of services.
Can an application for the same trademark be filed in more than one class?
The trademark application may be submitted as a single-class application or a multiclass application.
Can international applicants also submit a trademark registration application in India?
An international trademark application may be submitted via the applicant’s trademark office under the Madrid Protocol (the Madrid Agreement Concerning the International Registration of Marks of 1891 which entered into force on December 1, 1995, and went into effect on April 1, 1996) The Office of Origin is another name for this trademark office. After receiving the application, the Office of Origin sends it on to the WIPO.
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This article has been written by Ayush Tiwari, a student of Symbiosis Law School, NOIDA. The article talks about regional trade agreements, role of World Trade Organisation, their types, transparency mechanism, and their pros and cons.
It has been published by Rachit Garg.
Table of Contents
Introduction
A regional trade agreement describes unrestricted trade between several countries in a certain area or region. More than half of all commerce in the world is governed by regional trade agreements. Over the last two decades, there has been an increase in regional trade agreements. Regional trade agreements between equal parties can be advantageous to both. Nevertheless, when comparing a wealthy and a poor economy, the larger economy always prevails. By removing all trade and foreign investment restrictions, a regional free trade agreement prevents impoverished economies from using import tariffs to shield their expanding sectors or their farmers from a flood of inexpensive imports. Regional trade agreements, however, can have both positive and negative effects. For instance, they can be appealing as it could be simpler for a small group of nearby nations with comparable issues and cultures to comply with the market opening in a specific area than it would be to do so in a larger forum like the World Trade Organisation (WTO). In this regard, they can serve as stepping stones on the path to a global agreement by providing fresh perspectives on rule-making. Regional trade agreements (RTAs) are a crucial tool in trade negotiations on a global scale. RTAs have increased in frequency over time and have become more complex. In order to improve openness and foster understanding of RTAs’ effects on the more comprehensive multilateral trading system, the World Trade Organisation and its Secretariat gather information and foster debates about RTAs.
According to the WTO, RTAs are identical trade agreements involving at least two partners that do not take place in the same location. All WTO members presently have an RTA in effect as of June 2016. The RTA Database contains reports, including authentic introductions, on the various regional trade agreements disclosed to the WTO.
Regional agreements, however, run the danger of making it more difficult for nations outside the region to do business with those inside and may inhibit further market openness, thus restricting development potential for everyone. Furthermore, compared to constrained bilateral or regional agreements, broad-based multilateral discussions, including more participants and industries, will offer a greater possibility for mutual advantage.
What exactly are regional and bilateral trade agreements
A regional trade agreement is an agreement made between two or more nations, in which the signatories consent to lower trade barriers like tariffs and quotas. Typically, many nations in a given region will agree to a regional trade agreement. The agreements deal with topics including the protection of intellectual property and commerce in both products and services. Additionally, they usually include clauses or whole chapters pertaining to foreign investment protection.
History of WTO and multilateral trade agreements
The Bretton Woods Agreement in 1947 and the subsequent establishment of the United Nations are the roots of the multilateral trade system and the WTO. A global trade agreement for the reciprocal decrease of tariffs on goods and commerce was negotiated between UN member nations soon after the UN Charter came into effect. The General Agreement on Tariffs and Trade (GATT) was negotiated and agreed upon in Geneva on October 30, 1947, by 23 of the founding 50 UN member nations after the negotiations lasted for two years. It was intended when the GATT was signed that it would serve as a temporary solution until the UN-affiliated International Trade Organisation (ITO) was established. The International Trade Organisation was never operational since the ITO Charter, which was agreed upon in Havana in March 1948, was never completely approved. Therefore, between 1948 and 1995, the only multilateral trade agreement still in effect to regulate international commerce was the GATT (when the WTO was established). It is commonly believed that the UN’s attempts to lower tariffs under the framework of GATT continued, starting in 1948. These multilateral discussions are referred to as “trade rounds,” and they are often credited with the advancement of global trade liberalisation. Each trade round during the GATT’s early years was centred on lowering tariffs.
A wider and more liberal approach was then adopted between 1964 and 1967 (during the ‘Kennedy’ round), and this approach was further developed between 1973 and 1979 during the ‘Tokyo’ round. The WTO and other additional multilateral trade agreements were the products of the most recent round, known as the ‘Uruguay’ round, between 1986 and 1994. The GATT agreements and principles were accepted by the WTO at its inception, and it has ever since managed to oversee and improve them. Through a multilateral trading system, the WTO seeks to lower obstacles to global commerce.
Types of regional trade agreements
The majority of RTAs are designed to encourage trade by lowering tariffs or other non-tariff measures in addition to lowering tariffs and other trade barriers. In essence, they also contain laws and norms that enhance the environment for investments. RTAs vary greatly in their extent and scope and span a variety of economic integration levels. Regional trade agreements include multi-country (plurilateral) agreements as well as reciprocal bilateral open trade and customs zones.
Preferential trade agreements
A preferential trade agreement is a commercial arrangement that grants preferred access to particular goods from particular nations. This entails lowering tariffs but not getting rid of them. This type of economic integration is the least effective. One such arrangement was the South Asian Preferential Trade Agreement (SAPTA), involving Bangladesh, Bhutan, India, the Maldives, Nepal, Pakistan, and Sri Lanka.
Free trade agreements
A free trade agreement, or FTA, is a second-level RTA. This entails the total elimination of all trade restrictions separating the two nations, but it still excludes the integration of the labour or capital markets. Under this approach, each agreement participant is free to keep its trade restrictions in place with parties not affiliated with the agreement. 84 percent of all RTAs are FTAs. Members of the FTA are allowed to maintain a variety of their most favoured nations’ trade obstacles against non-members while eliminating or reducing internal tariffs and non-tariff trade barriers (to trade in products and, to a growing extent, services) among themselves. To prevent goods from foreign nations from being transshipped through the member country that has the lowest tariffs, member countries must implement rules-of-origin criteria. The Association of Southeast Asian Nations (ASEAN) Free Trade Agreements (AFTA), the North American Free Trade Agreement (NAFTA), and the European Free Trade Association (EFTA) are the most well-known free trade accords.
Customs Union
A Customs Union (CU) is the subsequent phase of integration. A CU goes beyond an FTA by imposing a common external tariff (CET) on imports from other nations. Customs unions often have systems in place to divide tariff money among their constituent nations. The South African Customs Union (SACU), the East African Community (EAC), the Gulf Cooperation Council (GCC), and the Central American Customs Union (CACU) are a few examples of customs unions.
Common market
Common markets are a type of ‘deep integration’ in which the participating nations try to harmonise their institutional frameworks, legal systems, and regulatory frameworks. While a common market system has all the characteristics of a customs union, it also permits the free movement of labour and money among the member nations, along with the free flow of goods (output). Some of the well-known common marketplaces are the Common Market of the Southern Cone (MERCOSUR) as well as the Common Market of Eastern and Southern Africa (COMESA). The Central American Common Market and the Caribbean Community and Common Market are two further prevalent common markets (CACM).
Economic and Monetary Union
An economic and monetary union is the most extensive RTA, allowing members to freely transfer capital and labour throughout the union, establish common external trade barriers, eliminate all internal trade restrictions, and harmonise their fiscal and monetary policies. Members of this group cooperate on macroeconomic policy and use a single currency. The European Union, which takes the shape of an Economic and Monetary Union, is the most well-known and effective type of regional trade agreement in the world. The West African Economic and Monetary Union (WAEMU), the Economic and Monetary Community of Central Africa (CEMAC), the Eurasian Economic Community (EEC), and the Economic Cooperation Organisation are also economic and monetary unions.
WTO’s rules on regional trade agreements
One of the basic pillars of the WTO is non-discrimination. Generally, members have agreed not to give preference to one trading partner over another. RTAs are an exception to this norm. These agreements are discriminatory by definition since only those who sign them get better market access terms. Members of the WTO acknowledge the proper function of RTAs, which are agreements that lower trade barriers with respect to third parties while facilitating commerce between their parties.
WTO members are permitted to enter RTAs under clear guidelines that are outlined in three sets of rules. These regulations encompass the organisation and operation of customs associations, unrestricted trade areas for the exchange of goods (Article XXIV of the General Agreement on Tariffs and Trade, 1994), and regional or international trade routes for goods between citizens of developing nations (Enabling Clause), as well as agreements governing the exchange of administrative services (Article V of the General Agreement on Trade in Services). RTAs generally need to generously cover all commerce, unless they fall under the Enabling Clause, and let trade flow more freely among the RTA’s member countries without putting up barriers to trade with other countries.
The impact of RTA on international trade liberalisation is debatable. RTAs are intended to benefit signatory nations, but if resource allocation distortions, as well as trade and investment diversion, are not reduced, predicted gains may be compromised.
Moreover, the growth of RTAs has created the concept of overlapping membership. This can hinder trade flows when dealers struggle to meet several sets of trade standards. Furthermore, there might be higher risks of inconsistencies among various agreements as the scope of RTAs expands to include areas of policy not regulated multilaterally. The majority of earlier RTAs only addressed tariff liberalisation and associated regulations like trade defence, standards, and rules of origin. RTAs are increasingly expanding to incorporate promises to service rule liberalisation, investment, competition, intellectual property rights, e-commerce, environment, and labour. This can result in regulatory ambiguity and implementation issues.
Additionally, the idea of covering enrollment has been made possible by the growth of RTAs. When traders struggle to comply with various trade regulation arrangements, this might hinder commerce flow. Moreover, there may be increased risks of anomalies across multiple agreements as the scope of RTAs expands to include new territories not controlled multilaterally. The majority of more seasoned RTAs secured tax advancement and connected laws, like trade guards, regulations, and birthplace rules, as it were. RTAs have evolved through time to take into account the development of services as well as obligations for administrative norms, ventures, competition, protected innovation rights, e-commerce, conditions, and work. This might contribute to usage concerns and administrative chaos.
The Committee on Regional Trade Agreements
The General Agreement on Tariffs and Trade (GATT) and Article V of the General Agreement on Trade in Services (GATS) both contain provisions for RTAs, and the Committee on Regional Trade Agreements (CRTA) is responsible for implementing these provisions. RTAs are now viewed by the Committee on Trade and Development as coming under the Enabling Clause (covering trade agreements between creating nations).
The CRTA’s distinct powers are to consider whether it is necessary to give an explanation of the activity of agreements that ought to be made and to design methods to promote and improve the assessment procedure. The CRTA is also required to take into account the fundamental implications of RTAs for the multilateral trading system and how they relate to one another.
WTO members received a ministerial statement at the Tenth Ministerial Conference in Nairobi in 2015 when they agreed to proceed toward turning the present temporary transparency system into a permanent mechanism without favouring queries with cautionary requirements. It also instructed the CRTA on how to discuss the underlying implications of RTAs for the multilateral trading system and how they relate to WTO regulations.
New transparency mechanism for Regional trade agreements
The WTO General Council recently developed a mechanism for RTA transparency. On December 14th, 2006, the mechanism for new transparency was developed on a temporary basis. The ruling may be found in WTO document WT/L/671, dated December 18, 2006. The following are the key features of the new transparency mechanism:
The new transparency system allows for early reporting to the WTO and announcement of any RTA.
Members will evaluate the notified RTAs based on the WTO Secretariat’s factual presentation.
The application of the Transparency Mechanism for RTAs covered by Articles XXIV and V of the General Agreement on Tariffs and Trade (GATT) 1994 is the responsibility of the Committee on Regional Trade Agreements (CRTA).
The application of the Transparency Mechanism of RTAs coming under paragraph 2(c) of the Enabling Clause is the responsibility of the Committee on Trade and Development (CTD) (trade arrangements between developing countries).
The transparency system will be implemented on a provisional basis. Members will examine the decision, make any necessary modifications, and then replace it with a permanent mechanism that is approved as part of the overall Doha Round outcomes. The legal link between this mechanism and certain RTA-related WTO laws will also be examined by the members.
Regional trade agreement negotiations
As a key component of the Doha Round of negotiations, which began in 2001, WTO officials have worked to clarify and enhance WTO regulations on regional trade agreements (RTAs). Since then, people have established a temporary transparency mechanism to examine RTAs and have also agreed to conduct discussions about the effects of RTAs on the multilateral trading system.
Since the interpretation of the regulations is still up for debate, determining whether RTAs comply with WTO standards has been challenging. With the aim of “explaining and strengthening disciplines and practises under the existing WTO agreements pertaining to regional trade agreements,” people agreed to the Doha Declaration in 2001. It also states that “the discussions will take the evolving aspects of regional trade agreements into the negotiating group on rules, which answers to the Trade Negotiations Committee (TNC), responsible for crafting exchanges on RTAs.“
The interim transparency mechanism for surveying RTAs was established by a 2006 General Council Decision, making it the main outcome of the exchanges. The mechanism developed a process through which these RTAs are recognised by WTO individuals – either in the Committee on RTAs or the Committee on Trade and Development – based on an actual initiation by the WTO Secretariat. It also did explain the requirements for the planning of notice of RTAs to the WTO. As part of the transparency mechanism, the WTO database on RTAs was also resolved.
In 2015, during the tenth Ministerial Conference in Nairobi, members of the WTO agreed to proceed toward turning the present temporary transparency process into a permanent mechanism, without prejudice to questions highlighted with warning conditions.
Effects of regional trade agreements on international trade
The quantity of research examining the potential effects that regional trade agreements may have on global commerce has increased in tandem with their prominence and significance as a tool for trade policy. The possibility that regional trade agreements could significantly impede the advancement of trade liberalisation has received a lot of attention. While some benefits may be apparent in the short term, if caution is not exercised, the long-term outcome may be a complex system of preferential trade that drifts further from the idea of multilateralism. Regional trade agreements currently have a far broader scope than the multilateral trading system and have grown more advanced in recent years. For instance, regional trade agreements handle topics like intellectual property and competition, which are difficult in multilateral trade discussions. Additionally, they are expanding geographically, with several regional trade agreements currently being signed by a number of nations from various areas with similar trade policy objectives. This shows that, rather than merely enhancing regional integration, regional trade agreements are increasingly being used to develop political and economic partnerships.
Advantages of regional trade agreements
A regional trade agreement is an agreement between numerous nations. The North American Free Trade Agreement and the European Common Market are two well-known regional trade agreements. The lawmakers of the nations that sign a regional trade agreement must provide their assent. RTAs provide a lot of advantages, which are :
Decreased prices
Regional trade agreements lower the tariffs that apply between the participating nations. Harvard University claims that the World Trade Organisation mandates that regional trade agreements cut tariffs between nations but forbids such nations from raising duties on those that do not take part. People can acquire items from other nations at reduced rates owing to the tariff reduction.
International export
Regional trade agreements provide all nations in an area with trade benefits that raise their overall competitiveness, especially in the markets of nations not party to the trade agreement. A vehicle company may sell automobiles abroad for less money if they can get inexpensive steel from a nation with which they have a regional trade agreement. Regional trade agreements, in accordance with Harvard University, might also inspire other countries who are not parties to the trade agreement to lower their trade barriers.
Rewarding allies
Through a regional trade pact, allies may benefit. Harvard University claims that since Chile and New Zealand opposed the Iraq War, the United States put off establishing trade deals with them. A government may also choose to negotiate free trade agreements with countries that develop comparable political and economic systems and refrain from doing so with those that abuse human rights.
Conflict resolution
Processes for resolving trade disputes are included in regional trade agreements. Conflicts between nations occur over currency manipulation, the dumping of goods at cheap prices, and agricultural subsidies. The trade agreement stipulates uniform arbitration procedures and guarantees that trade disputes are settled in accordance with these procedures. Trade agreements frequently identify the place in which trade disputes are addressed, according to Cornell University, which eliminates disagreements regarding which organisation has jurisdiction over the trade issue.
Dispute remedies
Regional trade agreements specify dispute resolution procedures. According to the terms of a trade agreement, a country that engages in trade practices that are detrimental to a trading partner may be held legally liable.
Member nations use the unrestricted movement of commodities and services to boost exports and domestic output.
Creating jobs
Businesses are encouraged to boost production by the larger market. In the end, they boost the home economy by adding additional employment and money. Workers’ mobility is increased when free flow incorporates production elements, allowing them to find employment in other member nations.
A stronger negotiating position in treaty negotiations
For instance, the creation of an economic union strengthens and expands the EU economy. It strengthens its negotiating position in trade deals with non-member nations.
More choices
The benefits of free trade are felt by consumers. They have access to more affordable, higher-quality goods. The removal of trade restrictions leads to higher supply, greater variety, and cheaper prices for goods.
Disadvantages of regional trade agreements
Selective tariff reduction might not increase the welfare of the people. This is only done so that trade can be shifted from more productive producers in non-member nations to less productive producers in member countries as a result of tariff preferences.
For instance, once NAFTA was ratified, East Asian textile exporters found themselves at a disadvantage when competing with Mexican producers in the US market. Despite being less effective than Asian exporters, NAFTA benefits Mexican businesses.
Other drawbacks of regional trade agreements include:
Trade deflection
Non-member nations would use the tariff differential for their own gain if the agreement only reached the free trade area level.
Increased reliance on the economy
When one of the member nations experiences a recession, it might swiftly spread to the other members. A prime example is the late 2009 Eurozone debt crisis. Greece was where the crisis first began, and it quickly extended to nations like Italy and Spain.
Reduction in economic autonomy
Member nations undertake coordinated economic strategies under economic unions. It might not be suitable for each member country’s economic interests. Policies may benefit members with robust economies while largely disregarding the interests of other members.
Domestic industrial bankruptcy
Because of inefficiency and low competitiveness, increased competition destroys the domestic sector. The pressure increases if the sector absorbs a sizable number of people. If regional trade agreements are only at the free trade area level, labour mobility is generally very low.
The evolution of regional trade agreements
Despite the establishment of the WTO and the global trading system, there has been a surge in regional trade agreements in recent years. One rationale for this is the WTO’s slowdown and relative inefficiency as a tool for building a system of free trade between nations. The WTO’s trade rounds have been longer and harder to wrap things up as they’ve gotten more liberal and tried to handle bigger concerns; the most recent round, the “Uruguay” round, lasted for eight years. Perhaps it is not unexpected that the many trade liberalisation-related decisions that must be taken unanimously frequently take a long time. It is therefore not unexpected that the demand for a complete agreement places a cap on how far any trade reform agreement can advance. Additionally, there are several external variables to take into account, including politics and economic development, both of which affect discussions. The present challenges facing the ‘Doha’ round’s completion serve as an excellent example of how slowly WTO trade round discussions move. These restrictions on the WTO may be the reason why bilateral and regional trade agreements have recently taken centre stage in global commerce.
Conclusion
Due to the advantages of the reciprocal benefits of regional trade agreements, many developing nations are signing them. Arrangements are desirable and provide a far quicker trade liberalisation option than what the ‘Doha’ round is currently able to provide. However, the growth of regional trade agreements has led to a complicated web of overlapping accords, which many people worry may harm developing nations since they are poorly prepared to handle such a high level of complexity.
There are worries that many developing nations are agreeing to deals that may deteriorate over time since regional trade agreements are by their very nature discriminatory. Small businesses and emerging nations that cannot manage chaotic structures will thus suffer in the long term. The most common type of reciprocal trade liberalisation in the last fifteen years has by far been regionalism. Trade economists, many of whom are worried about the distortions from the discriminatory practices inherent to these arrangements, have been sceptical of this tendency.
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In today’s world when there is massive work pressure and unmonitored working hours, creating mental pressure on the employees coupled with the abuse or rebuke from the bosses, some people tend to commit suicide when they are unable to handle the circumstances. In this article, we will analyse whether putting mental pressure on the employee could be the basis of conviction under Section 306 IPC. Particularly, we will analyse situations like excessive work pressure on the deceased, pressure for repayment of loans, and alike situations especially when the deceased has mentioned the name of the accused in the suicide note.
The term ‘Suicide’ is not specifically defined under the Indian Penal Code. It is a combination of two words – ‘Sui’ meaning ‘self’ and ‘cide’ meaning ‘killing’, thus ‘Suicide’ means ‘self-killing’. Oxford Dictionary defines it as the intentional killing of one’s life. Section 306 IPC penalise abetment of suicide and Section 309 IPC penalise attempt to commit suicide. In this article, we will look into the essential ingredients for Section 306 IPC and scenarios for its application. The ‘abetment’ under this section must conform to the definition of ‘abetment’ as given under Section 107 IPC.
Commission of suicide
Section 306 creates a specific offence as the liability under this section arises only upon commission of suicide and it will not be applicable for an attempt to commit suicide. This was discussed by the Hon’ble Supreme Court of India in Satvir Singh And Ors vs State Of Punjab And Anr stating that Section 306 makes the person abetting the suicide punishable for which the condition precedent is that suicide should necessarily have been committed. In Shiv Prasad Pandey v. State of U.P, the court stated that the offence of attempt or abetment is made out only when the offence abetted is committed in consequence thereof. Thus, where the commission of suicide is abetted and the suicide is committed as result thereof, the abettor is liable under Section 306.
The Constitutional validity of this section has also been established by the Apex court. Sec. 306 constitutes an entirely independent offence based on public policy. It follows the principle that nobody should instigate, aid, or encourage someone to end his own life.
Can there be an attempt of abetment to suicide (Section 306 and 511 IPC)
We have seen that when a person abets someone to attempt suicide and as result, the suicide is committed then the abettor shall be held liable under Section 306 IPC. For conviction under Section 306, the commission of suicide is a must. So does that mean if the suicide is not successful because of any factor, the abettor can go free? Section 511 IPC deals with punishment for attempting offences punishable with imprisonment.
The Kerala High Court in Berin P.Varghese vs State Of Kerala held that it would be a defeat of the purpose of the law to hold a person liable for abetting suicide, but not for committing suicide itself. Such ad absurdum construction must certainly be avoided, if possible. The learned Justice R.Basant commented that “I take the view that an attempt to commit the offence under Section 306 IPC is certainly possible and there is no warrant for the presumption that there cannot ever be a conviction for an offence under Section 306 r/w. 511 IPC. If a person abets the commission of suicide and the abetment does not succeed and fructify into a completed offence under Section 306 IPC it must, be held to fall within the sweep of Section 306 r/w 511IPC.”
The charge under sec. 306 r/w 511 can be levelled when the accused would be liable under Section 306 if the attempt to commit suicide would have succeeded. Further, section 511 is a residuary section and cannot be imposed when there is another express provision punishing the alleged act. It was observed in Satvir Singh And Ors vs State Of Punjab And Anr that when the act is expressly made punishable under another provision, it stands lifted out of the purview of Section 511 IPC.
Ingredients of abetment to suicide
Abetment under this section is in tune with Sec. 107 which defines abetment. For making a case under Section 306, the prosecutor has to prove that-
The deceased committed suicide
There was the instigation for suicide by the accused
Engaging in a conspiracy and
Aiding the commission of suicide.
In all three cases of instigation, conspiracy or aid, direct and active involvement of the accused is essential to convict them for abetment of suicide. The term ‘instigation’ is not defined in IPC. The instigation on the part of the accused should be active and proximate to the incident. It has been held in many cases that to constitute “instigation”, a person who instigates another has to provoke, incite, urge or encourage doing an act by the other by “goading” or “urging forward”. A mere statement suggesting the deceased end his life without any mens rea would not come under the purview of abetment to suicide. Mens rea is a necessary ingredient of instigation and the abetment to suicide would be constituted only when such abetment is intentional.
In Geo Varghese v. State of Rajasthan, a 9th standard student committed suicide and left a note alleging that his PTI teacher harassed and insulted him in front of everyone. The court emphasised two essentials for conviction under Sec. 306. Firstly, there should be a direct or indirect act of incitement. A mere allegation of harassment of the deceased by another would not be sufficient. Secondly, there must be reasonableness. If the deceased was hypersensitive and if the allegations imposed upon the accused are not otherwise sufficient to induce another person in similar circumstances to commit suicide, it would not be fair to hold the accused guilty for abetment of suicide. Thus, the Hon’ble SC quashed the FIR in the lack of any specific allegation and material on record as the essentials to prove the allegation under Section 306 were not satisfied.
Importance of mens rea in case of abetment to suicide
The court quashed the FIR under Section 306 IPC in Roop Kishore Madan v. State, mentioning that even though the suicide note clearly mentions that the deceased committed suicide because of the accused but there is no material on record to show that the ingredients of the offence of abetment had been satisfied and, therefore the offence under Section 306 IPC cannot be said to have been committed. The instigation when not direct has to be gathered from the circumstances of the case.
In Manish Kumar Sharma v. State, the accused lent some money to the deceased lady and while demanding the dept repayment the accused used filthy words and the lady committed suicide due to extreme mental stress. It was held that the accused cannot be held guilty under section 306 and the importance of mens rea was emphasised.
In Chitresh Kumar Chopra v. State, the special leave appeal was dismissed by the SC and the charges framed by the trial court were affirmed. The brief facts of the case were that the deceased named Jitender Sharma committed suicide by shooting himself with a licensed revolver. The deceased was a partner with the appellant and two other people and was engaged in the real estate business. The deceased left a suicide note saying that his three partners abetted him to commit suicide because of some money matter. It was argued that the role of the accused in the conspiracy resulting in the deceased committing suicide is not established. As per the suicide note, the deceased owed some money to the accused and the accused would not instigate the deceased to commit suicide without recovering the debt as the accused will lose his money in this case. Under Section 107 of the IPC, intentional aiding and active complicity are essential. The court stated that the onus of showing the circumstances which led the deceased to take the drastic step of committing suicide is upon the prosecution. To frame charges under Section 306 IPC, prima facie, the conduct of the accused shall be such that the deceased was left with no other option besides committing suicide or there should be encouragement or aiding from the accused. But there was evidence showing that the deceased was threatened, called dishonest and was forced to give up his 25% share in the joint property and accept a 10% share instead. In addition, a witness told the deceased that he overheard the other two partners telling the deceased that the accused had instructed them to inform him that he had the last chance to sign the contract, and that he must sign or die by taking poison if he wants to live in society. Soon thereafter the deceased committed suicide. Hence the circumstances were such that the deceased was pushed to the wall and the only escape shown to him was suicide thus, the SC dismissed the appeal stating that the charge was correctly made out against the accused under Section 306.
In Madan Mohan Singh v. State of Gujarat & Anr., in the suicide note it was mentioned that the accused was the sole reason for the deceased to commit suicide. The deceased was a driver and underwent heart surgery because of which his doctor suggested he abstain from stressful duties. Failing to comply with the orders a superior officer (accused) to the deceased rebuked him and asked the deceased how he still found the will to live, despite being insulted so. The driver then committed suicide. The Apex court observed that the deceased was suffering from depression and the accused never intended him to commit suicide.
Praveen Pradhan v. State Of Uttaranchal & Anr the SC observed that “instigation has to be gathered from the circumstances of a particular case. No straight-jacket formula can be laid down to find out as to whether in a particular case there has been instigation which forces the person to commit suicide.” In this case, it was alleged that the accused was compelling the deceased to indulge in several wrongful practices at the workplace and on refusal to such demands the accused started harassing and insulting the deceased at regular intervals. The court held that there was persistent harassment and humiliation thus the court dismissed the appeal and ordered for trial.
High work pressure and abetment to suicide
In Vaijnath Kondiba Khandke v. The State Of Maharashtra, the deceased named Kishor Parashar was working in the office of the Deputy Director of Education Aurangabad. His wife alleged that the higher officers of her husband subjected him to mental torture, requiring him to work from 10:00 am to 10:00 pm, they would call her husband at odd hours and even on holidays to get the work done. She also alleged that the accused stopped his one month’s salary and was threatening to stop the increment due to which her husband was very disturbed and committed suicide. The HC observed that even though the accused persons have no intention of the deceased committing suicide but if they create a situation causing extreme mental tensions to drive the person to commit suicide, they can be charged for instigating the suicide. However, the Hon’ble SC allowed the appeal for quashing the criminal case and observed that there is no suicide note left by the deceased and the allegations against the accused are based on the assertions of his wife only. It cannot be denied that when a situation is created deliberately to instigate a person to commit suicide as result thereof, Section 306 would be attracted but in the present case, where a superior officer exercised his powers to get the work done from his junior, it cannot be said that there was any criminal intent/mens rea.
The Andhra Pradesh High Court in B.Sridevi v. The State Of Andhra Pradesh, granted bail to the petitioner because the complaint showed that the deceased committed suicide due to pressure from his higher officers, without showing any instigation or abetment. Hence, no prima facie case for abetment to commit suicide could be made out.
Committing suicide due to frequent transfers and harassment at workplace
In Dr J.P. Bhargav And Anr. v. State Of U.P., the Lucknow Bench of the Allahabad HC on 06.07.2022, allowed the application for quashing of FIR under Sections 120-B/306 IPC and the order passed by the Special Judicial Magistrate (C.B.I.) Lucknow in absence of any record showing mens rea for instigation. The name of the accused was present in the suicide note. The HC stated that it is clear that the deceased perceived harassment as he was transferred in frequent succession on administrative grounds and was not given earned leave but the essentials for instigation under section 306 are completely absent.
Recently, Dr Surendra Manjrekar v. State of Maharashtra decided on 28.1.2022, the applicant was granted anticipatory bail as the Bombay High Court held that it was doubtful whether the offence, under Sections 306 read with 107 of IPC was made out.
Sufficiency of evidence for a conviction
The Delhi HC in Prashant Manchanda v. Lt. Governor Of Delhi & Anr held that an FIR cannot be registered for abetting suicide merely on the basis of allegations that XYZ abetted the suicide. In this case, the deceased held his superior, the Commissioner of Police responsible for him to commit suicide. The court stated that when a person commits suicide he goes beyond the reach of investigating forces. In such cases, the cognizable part is abetment to commit suicide, hence before registering the FIR the complaint must disclose the abetment to commit suicide by the person named in the complaint. Police cannot register FIR against someone based on the absurd allegations in the complaint.
After FIR, in order to start the trial, the first step is to frame charges. In the State of M.P. v. S.B. Johari, the court held that the charges can be quashed if the evidence that the prosecutor proposes to introduce to prove the guilt of the accused, even if accepted fully before it is challenged by cross-examination or rebutted by the defence evidence, if any, cannot prove that the accused committed the particular offence. In that case, there would be no sufficient ground for proceeding with the trial.
Thus, at the time of framing charges against the accused the court has to prima facie consider the case and examine if there are sufficient grounds to proceed against the accused and if there is strong suspicion against the accused based on the independent facts and circumstances of each case. The court is not supposed to examine whether the evidence produced by the prosecution may be sufficient for conviction or not.
Category of offence and procedure for trial
This is a cognizable and non-bailable offence under CrPC as it is considered a heinous crime which impacts society. On 29 July 2022, the Hon’ble SC set aside an order of the Gujarat High Court by which the HC quashed the FIR under Section 306 IPC and Justices Indira Banerjee and V. Ramasubramanian observed that abetment of suicide is a heinous offence thus proceedings under it cannot be quashed on the basis of any financial settlement with the informant. As it would suggest a dangerous precedent where the complaints would be lodged for ulterior motives to extract money from the accused. Thus, it is a non-compoundable offence to be tried by the Court of Session. The fine imposed is usually given to the family of the deceased.
Conclusion
Thus, we can conclude that in order to charge the accused under Section 306 IPC there must be some direct and proximate nexus of the abetment and the result of such abetment must have led the deceased to commit suicide. Mere mentioning the name of the accused in an FIR/suicide note or the words uttered by the accused in a fit of anger or emotion cannot be the basis for conviction. It is important to judge each case according to the facts and circumstances, but a mere reprimand or a demand to fulfill contractual obligations cannot constitute a conviction, unless, the prosecution can show that the deceased was left with no choice by the accused’s actions or that he was encouraged to commit suicide by the accused.
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This article is written by Gautam Chaudhary, a law student at Chanderprabhu Jain College of Higher Studies & School of Law, GGSIPU. The present article talks about the concept of debentures and meaning of redeemable debentures, followed by their types. Further, an exhaustive explanation of the nature and features of the same and redeemable debenture reserve is also given.
It has been published by Rachit Garg.
Table of Contents
Introduction
Every now and then, a company feels the need for funds and capital to stay as good and smooth as ever in the corporate market. The funds produced are utilised in various essential and crucial operations of the company. For example, the funds can be utilised for issuing shares since share capital is the principal source of income for every company, or they can be used for expanding the business, conducting research and development activities, etc. The point is that sometimes a company needs capital or funds for operations in the long run or for an immediate need. Due to their vibrant nature, debentures are also issued by the government for their required operations as well. It issues debentures, which are the most secured ones since its motive is to generate capital without driving people towards losses. This article discusses the source or way of generating the necessary funds and capital a company must generate to meet its needs.
Debentures
Section 2(30) of the Companies Act, 2013, defines ‘debenture’; it states that debentures include the debenture stock, bonds or any other financial instrument promising to pay the amount taken by the company. For easy comprehension, debenture can be related to the concept of debt because debenture acts the same as debt for a company. For example, if A wants to buy a car whose value is 70 lakh INR and he has 20 lakh rupees, he would apply for a loan to purchase the desired car. The same is the case with companies. Let us say, a company wants to expand its research and development programme for enhanced intellectual property commercialization. The company’s steps have proved to be effective in the long term and are of enormous value. So, the company would reach out to take loans from the public. Basically, debentures refer to the document that showcases the formal acknowledgement of the debt by the company, admitting that the company has taken a loan from the public, wherein it also states the interest amount of the loan to be paid to the public at the specified time for the sum borrowed until the debenture is relieved. In simple terms, it can be said to be the company’s liability. The investors who purchase issued shares of the company become debenture holders.
Section 2(30) of the Companies Act, 2013, also talks about a charge over the assets of the company. Here the word ‘charge’ would mean the authority or power given to the public after issuing the share to them. The significance and need of the charge over the assets of the company are of paramount importance because, in common parlance, a charge would mean the freedom given to the debenture holders, which would come into play when the company fails in repayment of the borrowed amount along with interest. In this case, the debenture holders would have the utmost freedom to sell the assets of the company and recover their given principal amount and debt interest.
Types of debentures on different basis
Debentures issued to the common public are further classified into various types based on their security, convertibility, priority, record, performance, and coupon rate. These different types of debentures are explained below:
On the basis of security
Secured debentures
Secured debentures are the same as collateral loans, which means these debentures operate only on collateral security that the company gives to the investors. In simple terms, some collateral must be kept for such debentures, and that collateral would be assets of the company. If the company fails to repay the principal amount with interest, the debenture holders can recover their money through the sale of the assets.
For example, a company XYZ needs capital for its business operation; to do so, it issues secured debentures to attract investors. Now here when the company issues a debenture of secured nature it shall keep let’s say any tangible asset of great value as collateral, say the company’s alternative power plant. Just in case, in the future, the company goes insolvent, it would clear the debt of the debenture holders by selling off the power plant. When the company becomes insolvent, then debenture holders acquire an absolute right over its property and can recover their money by selling the same.
Secured debentures are further categorised into two categories. They are as follows:
Fixed charge assets
Fixed charge assets are the particular assets the company gives against the borrowed debt. It is a fixed asset against which the debt would be recovered through a sale if the company fails to fulfil its end of the promise.
At last, it is obvious that these assets cannot be sold by the company without the consent of the debenture holders. For example, the company issued a debenture putting its heavy machinery of all types. This is a fixed charge.
Floating charge asset
Floating charge assets are general in nature; they are not specific, like fixed charge assets. The company issues debentures by giving general assets as security.
In the case of floating charge assets, the company is at full discretion in regards to what is kept as collateral, and for this reason, they are general in nature. For example, It may keep plants, machinery, or its official office building as collateral.
Unsecured debentures
These debentures are called ‘unsecured’ because there is no collateral present to back the surety of repayment of the borrowed debt. Debenture holders give out loans to the company as per its market image, credibility, and value. In the case of such debentures, debenture holders do not possess the power to sell off the company’s assets.
On the basis of convertibility
Convertible debentures
These types of debentures can be eventually changed into equity shares of the company after a specified period of time. Equity shares are normal or ordinary shares, wherein, part ownership is obtained upon purchase.
For example, company XYZ issues debentures for a certain period, and during the said period the shareholders of the company decide to convert those debentures into equity shares. After the conversion, all the debenture holders would now enjoy the status of equity shareholders, where they would now have the right to vote in the company’s decisions and operations.
Convertible debentures are further divided into two classes, which are as follows:
Partially convertible
Debentures that are converted to equity shares only in a specific proportion are called partially convertible debentures. The company decides the proportion for conversion after it issues the securities to the general public.
For example, a company issues 100 debentures at a value of Rs. 200 per debenture. After some time, the shareholders decided to convert 30 debentures into equity shares. Upon the conversion, the debenture holders of those 30 debentures would have the right to vote in the company’s operations and would be called the owner of the company since they are the shareholders now.
Fully convertible
These debentures are fully converted into equity shares of the company. The company decides whether to convert the debentures into equity shares at the time of issuance.
For instance, a company XYZ issues 100 debentures and, after some time, decides to convert them into equity shares. In this case, the investors in all the debentures would now be converted into shareholders and therefore have the above mentioned rights.
On the basis of priority
First mortgaged debentures
First mortgage debentures are given first preference at the time of company liquidation, which means the holders of the first mortgaged debentures are paid up first when the company begins repaying its debts and other forms of liabilities. It is only after the repayment of these debentures that the other forms of debentures are paid.
Second mortgaged debentures
Second mortgaged debentures are only repaid by the company after repaying the first mortgaged debentures at the time of liquidation. They come second, after the first mortgaged debentures.
For example, out of 100 investors, around 50 invested in first mortgaged debentures, and another 50 invested in second mortgaged debentures. Now that the company has started generating capital and has begun paying its liabilities, it would first pay the mortgage debenture holders and then the second ones.
On the basis of record
Registered debentures
The term ‘registered’ here means the filing of necessary information like names and addresses of the debenture holders in the register maintained by the company for keeping a record where transfers of debentures are registered by the company. The debentures in respect of which the said record is made are registered debentures.
Unregistered debentures
These debentures are also known as bearer debentures. In plain language, unregistered debentures can be comprehended as ‘informal debentures’, because, unlike registered debentures, they do not include a formal and laid down procedure. The details, such as names and addresses of the debenture holders, are not registered in the register of debentures by the company. Unregistered debentures are also transferable upon the delivery of the instrument, so the person holding the instrument gets paid.
For example, if company XYZ issues the above-mentioned debentures, in the case of a registered one, the company would maintain a register to keep all the necessary information for paying the investors conveniently in the future. But in the case of an unregistered debenture, the company would not maintain an information record register; rather, it would informally issue an instrument to pay the investors.
On the basis of performance
Redeemable debentures
Redeemable debentures are issued for a certain period of time by the company. The company, at the date of issuance of the debentures, provides the debenture certificate, wherein it mentions the date upon which the principal amount will be repaid. The company, after the issuance of such debentures and on and after the date of issuance, becomes bound by its promise. These types of debentures are considered the most secure form of investment because the repayment of the principal amount is assured and further interest is given to the holder in lump sum or in instalments. This is discussed in-depth in the forthcoming paragraphs.
Irredeemable debentures
Unlike redeemable debentures, these debentures do not have a specified time period for repayment. The company only pays the debenture holders when it goes into liquidation, i.e., when it starts to pay off its debts and liabilities.
For example, a company on 1st of January, 2022 issues 100 debentures of 50 Rs. per debenture for a period of 5 years and at the time of issuing issues a certificate mentioning the rate of interest of 5% and date of repayment as 1st of January of 2027. 5 investors invested equally, i.e., each investor invested in 20 debentures. Here, the company is bound to repay the debenture holders at any cost after the expiry of the specified period, i.e., 5 years on the 1st of January, 2027, the principal amount of 1000 Rs. along with the amount of interest, i.e., 250 Rs.
On the basis of coupon rate
Specific coupon rate debentures
The coupon rate on debentures is the rate of interest associated with them. It is the rate in accordance with which the holder will get the interest. In the case of a specific coupon rate, the debentures are circulated in the market with a fixed and specific rate of interest. Through this, the company attracts investors to generate funds. Like in the above given example, 5% interest is the specific coupon rate for the debenture, and accordingly, the interest amount for 20 debentures of 50 Rs. per value will be 250 Rs.
Zero-specific rate of debentures
These debentures do not come with a rate of interest. In other words, the debenture holders are not paid any interest along with the principal amount. But, the holders benefit indirectly through these debentures because they are issued by the company at a discounted amount, that is lower than the face value of the issued debenture. With this type of debenture, the debenture holder benefits from the difference between the discounted amount and the face value amount.
Now that we know what the different types of debentures are, let us dive deep into the basics of redeemable debentures. Let us begin with what redeemable debentures are, followed by how they are issued and their advantages and disadvantages, inter alia.
What are redeemable debentures
First of all, in order to understand the meaning of redeemable debentures, it is necessary to throw some light on the meaning of redemption. Let us understand what redemption is. Redemption means repayment of the amount borrowed at the expiration of the time period for which it was taken in the first place. Hence, redeemable debentures are debentures that are repaid by the company upon the expiry of a specific time period. In the certificate given by the company, it is clearly specified when the debenture will be repaid, and whether the amount will be repaid in whole or in instalments.
Redeemable debentures bring a sense of certainty along with them because the company is bound to repay this type of debenture, mandatorily, to all the debenture holders. Due to the presence of redeemable debentures, companies attract more investors or give out loans simply because they are secured, wherein the possibility of getting paid is undeniable. For example, company X issued debentures on the 23rd of December 2021 and issued a certificate stating that the debenture would be repaid on the 23rd of December 2022. In this case, the debenture shall be repaid after the expiration of the stated period of time.
Redeemable at par
Repayment of a debenture as per the same face value of the debenture is called redeemable at par. Just like bonds, debentures also have a face value. It is a value that a company sets on a debenture at the time of issuance. For example, suppose a company issued a debenture for Rs. 100 (face value) for a minimum period of five years. The debenture holders will buy it at Rs. 100 only. Then, after five years, the company repays the debenture holders the same amount, i.e., Rs. 100.
Redeemable at a premium
In cases of redemption at a premium or redeemable at a discount, the company issues the debentures at a certain face value but repays the amount to the debenture holders at a higher amount than the initial issued amount. For example, the company issued a debenture at Rs. 90 (face value), and after five years it repaid the debenture holders the amount of Rs. 110 to remove the liability. It can be seen here that the company’s repaid amount is higher than the initial face value amount.
Issue of redeemable debentures
Under the Indian Company Act, 2013, debentures come under the category of securities. Therefore, for issuing the debentures, the same legal provisions as those of securities are followed as provided by the code. Section 23 of the Companies Act deals with the issue of securities and classifies such issues by public and private companies. The same has already been discussed below.
Public company
Section 23 states that a public company may issue securities via a public offer by issuing a prospectus specifying all the necessary details. Whereas Subsection 1 (b) also provides that securities may be issued through private placement following the provision given under Section 42 of the Companies Act, Part (c) further provides that they can also be issued through a rights issue or a bonus issue, by a listed company, or also through a company that wants to get its securities listed. In this case, the intending company shall follow the rules and provisions provided by the Securities Exchange Board of India Act, 1992.
Private company
Section 23 deals with the issue of securities by private companies, wherein it says that it may issue securities through the right issue or bonus issue following the necessary provisions provided by the Act. It also provides that it can issue security through private placement following the provisions given under Section 42 of the Act.
Features of redeemable debentures
Written promise
As stated above, redeemable debentures are conclusively written promises with the assurance of paying back the lent money with interest.
Repayment
The foremost feature of redeemable debentures is the repayment of the sum borrowed. By issuing redeemable debentures, a company also issues a surety to repay the holders after the expiry of a particular time, say 5 years, because the company becomes bound by the certificate of debenture stating the date of repayment.
Value of redeemable debentures
Upon the expiry of the fixed time period, the company repays the amount either in the whole sum or in instalments. This is the second feature of redeemable debentures. The amount can be repaid either at par, i.e., the same as the face value at the time of issuance, or at a premium, i.e., a higher amount than the actual amount that was at the time of the issuance.
For example, one company, XYZ, issued redeemable debentures with a face value of Rs. 20 lakhs at par, and another company, i.e., DYC, issued redeemable debentures with a face value of Rs. 20 lakhs but issued it at 2% premium rate. Here, XYZ company will repay the amount of Rs. 20 lakhs only to its debenture holders since it was issued at par, i.e., the same face value, whereas the company DYC will repay the amount of 20 lakh with a rate of 2%, i.e., 20 thousand, since it was issued at premium.
Debenture Redemption Reserve (DRR)
Section 71(4) of the Indian Companies Act, 2013 makes it mandatory for companies operating in India to set up a Debenture Redemption Reserve (DRR) after issuing debentures to investors. The motive of the same is to provide protection and a sense of security to the investors for their invested money. The said reserve is made and maintained by the company by keeping aside a certain percentage of the cash amount raised through the issue of debentures. This allows the company to use the cash as a backup plan to remove its debt obligation if, in the future, the company fails for any reason. The said provision has been mandated by the Ministry of Corporate Affairs to protect the interests of investors since such debentures are not backed by the surety of assets and lien.
Advantages of redeemable debentures
Redeemable debentures provide the debenture holders with a great number of advantages which are proven to be a good source of income, and beneficial to the investors. The following are mentioned below.
Secured
Redeemable debentures are proven to be financially secure in nature. The foremost reason for the same is that these types of debentures are surely repaid because the company, at the date of issue, grants a certificate stating when and how in the future the borrowed amount and interest will be repaid. However, it is after a long and tiring period of time. But still, it is unlike all the other risky and unstable forms of the financial market, like cryptocurrency and stocks, etc.
Stable source of income
By investing, or in other words, lending money to the company, the person investing becomes a debenture holder. This debenture holder can now earn and have a stable source of income for a reasonable period of time. It is to be noted that a debenture holder only earns through the interest rate available on the debenture issued, and he can purchase an endless number of debentures as he likes. The more debentures issued, the more profits there will be.
Good source of funds
The main purpose of the issuance of debentures is to fulfil the business needs of a company. A company that decides to carry out huge operations like expanding business jurisdiction, research and development, and the purchase of plants and machinery does not purchase these out of its own pocket, the reason being the massive cost of the same. Therefore, the company generates financial power through these debentures only. They also help these companies generate funds through debentures, which are redeemable at a premium.
Disadvantages of redeemable debentures
Low-income
Redeemable debentures come with a low rate of interest in comparison to other financial securities. Therefore, investors make a low amount of money out of these debentures as compared to other securities like bonds, shares, stocks, etc.
Financial burden
In the event that the issuer, i.e., the company, is not able to make a profit, then these debentures become a financial burden on the company because they are bound to pay the principal amount and ultimately pay it after the expiry of the specified date. In such cases, the company faces losses and pays the debenture holders from its own pocket.
No voting rights
Unlike convertible debentures, redeemable debentures do not create voting rights in the company’s management and decisions.
Difference between redeemable and non-redeemable debentures
The following are the key differences between redeemable debentures and non-redeemable debentures:
Redeemable debentures
Non-Redeemable debentures
These debentures carry a fixed date of repayment.
Does not carry a fixed date of repayment.
The company issues a certificate specifying the specific date upon which repayment will be operated.
The company issues a certificate specifying no date of repayment.
The company is bound to repay after the expiry of the specified date.
The company is not bound to pay the sum.
The company will pay the sum only after the expiry of the specified time period. Not before and not far beyond the fixed date.
The company will only pay when it goes into liquidation or as per the terms stated by it.
Conclusion
The company, in order to generate funds, may issue various forms of financial securities, like stocks and shares on stock exchanges, but it can also, in order to play it safe, issue debentures. Since stocks and shares carry with them their risk factors, unlike them, the company can make a pretty good amount of capital through debentures since it is secured and safe. They can also be said to be one of the cheapest ways to generate funds.
From an investor’s point of view, redeemable debentures are the safest form of investment with guaranteed repayment and interest. They are also given priority at the time of winding up the company.
Frequently Asked Questions (FAQs)
What does a debenture represent?
A debenture represents a loan taken from the public for the purpose of raising funds. For example, a company, say, in the name of XYZ, wants to expand its business horizon and add plants and machinery for the same. Here, the company, in order to generate funds for the purchase of machinery and business expansion, may issue debentures for the public. When investors (from the local public) buy these debentures, a relation of debt is created between the company and the investor(s). Thus, in this instance, the company is liable to pay the debenture holder(s) the principal amount invested along with the interest amount.
Why are secured debentures termed ‘secured’?
Secure debentures are termed ‘secured’ because of the presence of the concept of charge over assets. If in any case, the company is not able to repay the borrowed amount and interest, the debenture holder always has the right to sell off the assets of the company and get the principal amount with interest.
Can a debenture be termed a loan?
Primarily a debenture can be said to be a loan taken from the public, but it can further be said to be the deceleration and admission by the company of taking a loan. The declaration is made through the issue of debenture certificates.
What is a debenture certificate?
A debenture certificate is a document that is issued by the company under its official seal, it is known as a debenture deed. It is issued in favour of the debenture holder. The document consists of various essential details like how many units a debenture holder has invested in, the date upon which the company will repay the amount, the rate of interest, and the names and details of assets.
What is the purpose of debenture?
The company issues debentures for its development and enhancement through various methods like R & D (Research & Development), taking off big projects, purchasing machinery, etc.
Why are redeemable debentures considered to be a secured form of investment?
Redeemable debentures are considered to be a secured form of investment because, in these types of debentures, there exists a surety for the investors for repayment of the lent amount. Since the company issues a certificate specifying the date upon which the amount will be repaid, it becomes bound from the date of issuance until the date of expiry. There is no scope of loss in redeemable debentures.
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The media plays a very pivotal role in an active democracy. Consider it such a powerful source of information that it has been tagged as the ‘fourth pillar of democracy’. Within this important and purposeful tag, lies great responsibility on part of the media. The media acts as a catalyst, as it is the direct point of contact with the public at large. Due to the immense credibility amassed over the years, a single statement flashed as ‘Breaking News’ by the digital media or print media is perceived by the general public to be cent-percent accurate. With such strong credibility and viewership, Digital Media is in such a dominating position that it can:
Pop an Animated Disguised Statement
Get that into the minds of the Public at Large
Convey a particular situation with a wrong meaning
Finally, get away with the repercussions of loose arguments
The aforesaid situation needs to be addressed with utmost urgency as its after-effects lead to either social tensions among various groups or a dignified person loses the thrust(significance)destroying his/her brand equity at large. Readers may ponder how will just one statement (or so-called marginal error by media) affect brand equity. Heard of the Domino Effect? Just create a mini spark and the entire dry fodder catches fire in no time.
Similar is the case with such catchy floating maligning headlines. The negative news pertaining to a particular individual or group of individuals spread like wildfire in the modern-day environment where social media apps are predominant.
This article will be discussing what a media trial means, its prevention & regulation, the constituents of Media Trial and Fair Trial along with suitable case laws.
What is media trial
When highly sensational or controversial cases involving big shots are decided by the courts, this broadcasting institution creates an air bubble. This is because they are well aware of the level of excitement and intensity within the general public regarding any new developments in such cases.
It is the Media that fills this void between the public-at-large and the adjudicating authority and it is their ‘one-of-a-kind’ fascinating, electrifying and thrilling plots that drive people to believe and engage in their spicy plots of virtual flavours. Now when an individual consumes such content they begin to form various perspectives solely on the basis of content served to them by these media-houses. The entire approach is carried on before the Hon’ble Court would pronounce their verdict. This entire influential process wherein the accused is portrayed as an offender is termed a Media Trial.
Media trial : a gimmick to gain TRP (Television Rating Points)
Until the charges framed against a person are proven and declared guilty by the court of law the individual remains ‘accused’ and does not become ‘criminal’. It is only the court of law or relevant authority under the statute who has the power to ultimately declare an accused person as guilty. However, in recent times it is becoming quite evident that even before the court order / adjudicating authority’s order had been pronounced- the media reaches its own ‘fairy tale conclusion’ painting the said individual/institution as a primary culprit.
The primary job of a broadcasting institution should only be to present facts to the viewers and leave it upon the viewers to decide, as per their own rational thinking, what could be the outcome of a particular situation. Although, this hasn’t been the case in recent times as the media through their famous ‘Prime-Time’ anchors have paved the way to try and fidget with public perception. The logic is quite simple- Public-at-large will enjoy something negative(added spice)rather than straightforward positive facts. This loop will lead to more views ultimately leading to high TRP.
Prevention of media trial and regulation of media
Prevention
The Law Commission in its 200th report, Trial by Media: Free Speech versus Fair Trial under Criminal Procedure(Amendments to the Contempt of Courts Act,1971), has recommended a law to debar the media from reporting anything prejudicial to the rights of the accused in criminal cases, from the time of the arrest to investigation and trial. Having a law that prevents media trials should serve as a deterrent by disbarring journalists from the profession for at least 7 years and suspending the licenses of such media houses for at least 9 years if such journalists propagate fake news or conduct such trials on air. Only when such strong attempts are made, the Media will shift its focus from “TRP-based Views” to “Factual based News”.
One such attempt was made back in 2018 wherein a Circular was issued by the Information & Broadcasting Ministry that sought to suspend/cancel the accreditation of journalists found to have propagated fake news. However, the same circular was withdrawn after the protest by Journalists. This circular was the first turtle step to curbing fake news & media trials. Had this circular been into effect as of today, who knows- by the next 5 years it would have taken the shape of legislative intent. Thus, only a separate law and strict provisions would do good to avoid such a ruckus.
Regulation
As of now, there are various laws enforced to regulate the conduct of media. Some of which are:
As per Section 13, The objects of the Council shall be to maintain and improve the standards of newspapers and news agencies in India.
According to section 14, the council may warn, admonish or censure a newspaper, news agency, editor, or journalist, or disapprove of their conduct. In the event that the newspaper or news agency has violated journalistic ethics or public taste or if an editor or working journalist has violated professional standards, the council may warn, admonish, or censure them.
The CTVN rules lay down the principles of the Programme Code, which regulates the type of programs that will be broadcast. The CTVN Act empowers the authorized officer under Sections 19 and 20 to prohibit the transmission of certain programs in the public interest or the television network altogether so that such programs do not disturb public tranquillity.
As per the Cable Television Networks (Amendment) Rules, 2021 a new sub-rule [i.e, sub-rule (7)] has been inserted which states that “where the Central Government is satisfied that the programme of any channel is not in conformity with the Programme Code, it may, after giving an opportunity of hearing to the cable operator, and by an order in writing, prohibit the transmission or re-transmission of any such channel or programme in accordance with the provisions of section 20 of the Act.”
A new three-tier Complaint redressal structure has also been devised to ensure observance and adherence to the Programme Code and the Advertising Code by the broadcaster.
Actual trial vs. Media trial
Actual trial
The Actual Trial (Fair Trial) is one where the trial is not impacted & driven by external pressures. Under our Constitution, as also the international treaties and conventions, the right to get a fair & speedy trial is a basic fundamental/human right. An individual has a right to defend himself as a part of his fundamental right as enshrined under Article 14 & Article 21 of the Constitution of India.
The Principles of Natural Justice are considered a part of the guarantee contained in Article 14 and hence no one should be condemned unheard. Moreover, the requirement to give a reason in support of the decision is one of the principles of natural justice. The right to defend oneself and for that purpose to adduce evidence is recognized by the parliament in terms of sub-section (2) of section 243 of the Code of Criminal Procedure,1973.
Article 129 (Supreme court to be a court of record) and 215 (High Court to be a court of record) along with the Contempt of Courts Act,1971 contain provisions with respect to Contempt of Court that aim at safeguarding the Right of Fair Trial.
Presumption of Innocence
In the State of U.P. v. Naresh and Ors.,[ (2001) 4 SCC 324] the Supreme Court observed that “every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right subject to statutory exceptions. The said principle forms the basis of criminal jurisprudence in India.”
Media trial
The fundamental role of the Media is to broadcast the authentic facts which implies that the media shouldn’t adjudicate upon any case but only publicize the factual part of the case. However, the print media and electronic media are now immersed in an unquenchable competition of TRPs (Television Rating Points). Article 19(1)(a) provides all citizens with the freedom of speech and expression. The expression ‘freedom of press’ is comprehended within this Article.
Such freedom was provided by the makers of our constitution so that everybody has the right to hold opinions without interference. However, it has been seen as of present times that the broadcasters have been making a soft misuse of this freedom by conducting media trials not adding to the strengthening of the democracy but only for TRP gimmick & maligning an individual’s brand equity.
The distortion of news is not just at the source level(news broadcasting level) but also at various intermediary levels(Individual Tweets & Youtube Channels), call them the “First-Line of Distorters”. Due to such an overload of information, people, in general, do not consider it as their duty to verify the “catchy news” and moreover believe it in its absolute sense to be true, whatsoever. So knowingly or unknowingly we(people at large)become carriers of such unsolicited news and participate in the “Second-Line of Distorters” club. The Sushant Singh death tragedy is a classic example of how ruthlessly the media conducted an Arbitrary Trial against the alleged accused and tried its best to paint Rhea as a culprit. The conspiracy theories and lurid speculations leading to the vilification of Rhea Chakraborty are not something of which one is unaware.
The media trial hampers actual trials as guilty persons are tipped off, innocent people are hounded, police investigation gets hampered and witnesses are threatened.
Case laws
Arushi-Hemraj Murder Case [9 years, 3 investigations, 2 verdicts]
This case gained a lot of media attention and was in the news for a very long time. Arushi was murdered along with her household worker Hemraj in May 2008. Initially, a lot of names occurred on the suspect list. The sensational media coverage was criticized by many as a trial by the media, which involved salacious allegations against Aarushi and suspects. The media raised questions about Arushi’s character as her affair with Hemraj, though no provident evidence had been found for the same. The media tried its best that was possible to glorify such an intense case and project it to the general public. According to the facts of the case, it was proved that there were no witnesses for the incident still, in spite of that, the public is well aware of every detail that had happened that night.
The parents were convicted for the murder and sentenced to life imprisonment in November 2013. In the Allahabad High Court, the decision was challenged by the Talwars, which later in 2017 acquitted them as giving them the benefit of the doubt and calling the evidence unsatisfactory.
Yakub Memon Case
Yakub Memon (30 July 1962 – 30 July 2015) was held to be a terrorist and on 27 July 2007, he was convicted for his involvement in the 1993 Bombay blasts by the Special Terrorist and Disruptive Activities Court. All of his petitions and appeals which demanded clemency were rejected and on 30th July 2015, he was executed by hanging in Nagpur jail.
Due to the extensive media coverage and trials, in this case, the lawyers defending the accused were heavily criticized, making it difficult for them to fulfil their ethical duty and provide legal aid. Not to be forgotten that the Right to Legal Aid is covered under Article 21 of the constitution.
Conclusion
As responsible citizens, we have the right to be informed about the various issues and events that have been taking place across the country and that responsibility lies with the media. However, where it reaches the extent to create an influence in the minds of its viewers or the readers, it becomes unjustifiable.
Addressing High-court Judges, Judicial Officers and Law Students in Ranchi Former CJI N.V. Ramana said, “Of late, we see the media running kangaroo courts, at times on issues even experienced judges find difficult to decide. Ill-informed and agenda-driven debates on issues involving justice delivery are proving to be detrimental to the health of democracy. Biased views being propagated by the media are affecting the people, weakening democracy, and harming the system. In this process, justice delivery gets adversely affected. By overstepping and breaching your responsibility, you are taking our democracy two steps backwards,”
Public-at-large gives unwanted reactions, comments and suggestions on those matters which, in its entirety, are not correct. Imagine, if such distortion is carried out to malign the image of an individual it not just hurts the person concerned but he/she unnecessarily becomes a source of mockery for the general public(experts carry out this campaign very systematically pretending themselves to be saints). So, rather than encouraging people not to do it(which is a waste of time), we should attack the roots of origination. As a result, the maligning campaigns and arbitrary media trials carried out by various intermediaries must be brought under the Legal Framework with strict penalties that have a strong after-effect so that no other individual or broadcaster dares conduct such unwanted campaigns in order to cater to views in the future.
Hence if the media is burdened with responsibility it has to use its tools responsibly.
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This article is written by Nishka Kamath, a graduate of Nalanda Law College, University of Mumbai. It is an endeavour to describe each and every criminal law in India in brief. It also has an overview of the history, nature, basic elements, and purpose of criminal law as stated under the Indian laws.
It has been published by Rachit Garg.
Table of Contents
Introduction
“There is no society known where a more or less developed criminality is not found under different forms. No person exists whose morality is not daily infringed upon. We must, therefore, call crime necessary and declare that it cannot be non-existent, that the fundamental conditions of social organisation, as they are understood, logically imply it.” -Emile Durkheim
In any society, crime (usually defined as an action or omission or illicit activity that is punishable by law) exists, and so do the criminal laws. ‘Criminal law’ is a phrase containing just two words but having several acts enacted underneath it. The basic function of enacting any criminal law is to punish the guilty and provide justice to the injured party through legal procedures. Criminal law can be regarded as the body of laws that deal with matters of criminal wrongs, for instance, theft, murder, sexual abuse, threatening, etc., and is also accountable for conducting a trial for convicted offenders.
Crime rates are increasing at a fast pace in India, which is why we need stringent bylaws to curb and deter such activities, thus keeping our society crime-free and making it healthy. Hence, in the following article, we will be looking at the basics of criminal law along with all the laws enacted for the purpose of safeguarding society from offenders.
Reasons for the occurrence of crimes in society
A criminal commits a crime for several reasons. Some criminals commit crimes to earn money, as it is one of the fastest ways to generate an income, whereas others do it for gaining fame, inter alia. However, there are criminals like Raman Raghav who are totally distinct; this criminal terrorized Mumbai in the 1960s by killing numerous people whom he did not even know and had no qualms of any nature for the commission of such misdemeanours. DPC Kulkarni, in his book ‘The footprints on the sand of crime’, was of the notion that such criminals do not have a motive, nor do they gain anything from committing such an act, but they are simply ‘incorrigible’.
There are even instances where a crime is committed with due authorisation and formerly with the governing bodies. For example, the agricultural lands in India were put to the wrong use even in the British era, when farmers were asked to grow opium instead of foodgrains, not only in India but also in Chinese territories. Nowadays, farmers choose to grow drugs like opium or hashish over other produce, considering the profit margins associated with such crops.
Brief history of Criminal Law in India
The history of the codification of modern criminal laws has its roots in the Vedic age and the reign of the Hindu and Muslim dynasties. However, it started taking shape in the British era. The modern criminal justice system is based on English laws and practices. These practices were pragmatic as well as contemporary, which is why a major chunk of the criminal laws that are prevailing today are similar to those laws implemented during the British era.
Sources of Criminal Law
The criminal justice system and the criminal laws thence, are all based on the penal legal system that was set up by the British in India. If we happen to look at the criminal laws or the criminal justice system today, which is after 75 years of independence, there haven’t been any substantial changes as such in the system or the legislation. The most notable example of such an outworn justice system is Section 124A of the Indian Penal Code (IPC), 1860, which discusses sedition and has a prescribed punishment for the same.
But a note must be taken that efforts have been made to amend the entire Code of Criminal Procedure in 1973. The appointment of the Vohra Committee was the very first attempt toward making amends to the Indian criminal justice system. The report published by the Vohra committee in 1993 made an observation on the criminalisation of politics and the nexus among criminals, politicians, and bureaucrats in India.
Moreover, in 2000, another effort was made by the Indian government to recommend reforms in the age-old criminal justice system. There was a committee formed, which came to be known as the Malimath Committee, and it was headed by Justice V.S. Malimath, the former Chief Justice of Kerala and Karnataka. The Malimath Committee submitted its Report in 2003 with 158 recommendations, but unfortunately, they never seemed to have seen the light of the day. This Committee was of the opinion that the existing system “weighed in favour of the accused and did not adequately focus on justice to the victims of crime.”
Looking at all the above contentions, it will be safe to assert that there is a dire need to bring about reformations in the criminal justice system, the recommendations of which will be discussed in the upcoming paragraphs.
Key differences in criminal and civil laws
Criminal laws mainly focus on the conduct of an individual that is offensive to the public, society at large, or the law of the land. Examples of criminal laws include theft, drunken driving, murder, assault, etc.
Whereas, civil law has its primary focus on the behaviour of an individual, or say, an organisation, which can inflict injury or harm on any private person or individual. Examples of civil law include defamation, whether libel or slander; breach of contract; negligence causing death or harm to any private party or an individual, etc.
A tabular representation of the difference between criminal and civil law
Below is a tabular representation of the difference between criminal and civil law-
Pointers
Criminal law
Civil law
Deals with
Criminal law deals with offences that are perpetrated against society at large.
Civil law is a general law that deals with issues that are on an individual or organisational level.
Objective
Criminal law penalises the convicts, safeguards the citizens and makes sure that law and order are followed.
The main object of civil law is to safeguard the rights of a person or an organisation. It makes sure that the wrongs committed by an individual are corrected and that the victim is negated for such wrongdoing.
Goal
The role of criminal litigation is to punish the defendant.
The role of civil litigation is to compensate the plaintiff for the injury/damage caused.
Punishment
The punishment for committing a criminal offence would be dependent on the gravity of the crime thus committed. Thus, the punishment can range from fines to detention or both, at times.
In civil law, there is a settlement of disputes between individuals or organisations by way of compensation. Further, there is no grave punishment like that of criminal law being provided for civil matters.
Filing of petition
In the case of criminal law, the government of India files a petition. Further, a petition cannot be filed directly in a court; rather the party has to approach the police first and then the crime needs to be investigated, only then a case can be filed.
In the case of civil law, the affected party or organisation files a petition. The case can be filed in a court or tribunal depending on the damages.
Passing a verdict
In criminal cases, the court can levy fines, deliver punishments like detention, or release the defendant.
In civil cases, the court can only pass a ruling to make up for the injury/damage to the affected party.
Status of defendant
In criminal cases, the defendant is either held to be guilty or not guilty by the court.
In civil cases, the defendant is either considered liable or not liable for the damages.
Examples
Criminal law mostly deals with grave offences such as murder, rape, robbery, etc.
Civil law mainly deals with matters relating to property or housing, money, divorce, custody of a child in the event of a divorce, etc.
Now that we know the difference between civil and criminal laws, let’s dive deep into the nitty-gritty of criminal law.
Significant components of crime as stated in Indian criminal laws
It is important to understand what and when an offence will become a crime to understand the criminal laws, so let’s have a look at the significant components of crime as stated under criminal laws.
Any activity that is against or punishable by the law can be said to be a crime. According to Blackstone, “crime is an act committed or omitted in violation of a public law either forbidding or commanding it.” Criminal liability in India is set up on the maxim ‘actus non facit reum, nisi mens sit rea”, meaning the act itself does not consist of guilt unless it is committed with a guilty mind. An integral point must be noted that this maxim is considered to be the basic principle of the whole criminal law. This maxim also gives out the two most crucial elements of a crime, namely:
actus reus and
mens rea.
In the famous case of Fowler vs. Padget (1798), Lord Kenyon made a comment that “the intent and act must both concur to constitute a crime”. Now let us have a look at the essential elements that constitute a crime.
Human being/ individual
The first element states that the wrong must be committed by a human being. Any wrongful act committed by an animal is not covered under criminal laws. Thus, the individual accused of committing a wrong should have a body, be under a legal obligation to act in a specific manner, and must be fit to be awarded a suitable penalty.
A point must be taken into consideration that, as per Section 11 of the Indian Penal Code, the word ‘person’ includes “any company or association or body of persons, whether incorporated or not.” Thus, the above definition includes a natural person, an artificial person (a company, association, or a body of individuals), and a legal person (such as an idol).
Mens rea
A guilty mind, i.e., the mens rea, is one of the most crucial ingredients of crime. There is no distinct definition of mens rea under the IPC or any other criminal law in India, but the same has been included in the following manner:
Provisions relating to the ‘state of mind’ necessary for committing a specific offence have been added in distinct sections of the IPC by using terms like intentionally, knowingly, voluntarily, etc.
The concept of mens rea is put into the provisions relating to the ‘General Exceptions’ under Chapter IV of the IPC. For instance, a juvenile aged 7 years is absolutely immune to any wrong he/she commits as per Section 82 of the IPC. Further, under Section 80 and Section 81 of the IPC, a person causing an accident while performing a lawful activity or doing it with the utmost necessity to prevent a wrong or further offence will have immunity from being liable to be guilty as there is no mens rea.
Mens rea is of the following degrees:
Intention,
Knowledge,
Reason to believe (defined under Section 26 of the IPC), and
Another essential ingredient of a crime is actus reus, i.e., the act committed or omitted by a person which is forbidden by law, like homicide (killing of human beings), rape, theft, sedition, etc. Irrespective of the pain or harm the event has caused, it won’t be considered to be actus reus unless it is restricted by law.
Interesting fact: Prof. Kenny was the first writer to use the term ‘actus reus’ and he defined it as “such a result of human conduct as the law seeks to prevent.”
Harm caused
The subsequent element of a crime is the harm or injury or damage induced to the victim and is defined under Section 44 of the IPC as any harm or injury inflicted on an individual illegally in “body, mind, reputation or property.”
Thus, looking at the above definition, it can be deduced that harm or injury can be caused to-
an individual (homicide, rape, etc.);
Property (robbery, theft, mischief, etc.);
Mind (cheating);
Reputation (defamation).
Further, a person is liable for the direct cause of his actions and not for any indirect cause of his actions. In simple words, a person is responsible for only the natural consequences of his actions under this Section.
Forbidden act
As stated above, for an offence to have been committed, it has to be inhibited by the legislation or the existing legal system, unless said otherwise. It is a known rule of criminal law that no offence can be penalised retrospectively if the said act did not constitute an offence at the time it was executed.
Punishment
An act or omission has to be punishable under the penal system. Such a punishment can vary from capital punishment to imprisonment and/or fine. Further, it is vital that the offender is not vexed twice for the same offence, i.e., he/she is not being subjected to double punishment for the same offence.
External consequence
Crime will forever have a detrimental effect on society, be it social, personal, mental, or physical.
Relativity
It is quite a complex subject to study, as an activity that might be considered to be a crime at a certain location may not be an offence elsewhere. For instance, drinking and gambling may not be considered offence when committed in a club. Such a varying description has been characterised by William Taft as ‘blue laws’.
Nature of Criminal Law
While discussing criminal law a few questions on its nature as to ‘Are there any general elements or elements that define a crime?’ or ‘How is a crime defined?’ may arise. The simplest answer to these questions is that crime is whatever the law asserts to be a criminal offence and anything which is penalised with a punishment.
However, the shortcoming of such an approach is that all criminal convictions do not give rise to a fine or punishment. So, instead of penalising the defendant, a judge may, in a few cases, simply warn him/her to not repeat the criminal act.
Professor Henry M. Hart, Jr. defines crime as “conduct which, if… shown to have taken place” will result in the “formal and solemn pronouncement of the moral condemnation of the community.” The foremost point of this definition is that a crime is subject to formal denunciation by a judge or jury representing the individuals in the court, which discerns a crime from acts most individuals find offensive but are not subject to prosecution and formal penalty.
So say, for instance, an individual can be criticised for cheating on his/her spouse, but the general solution to this issue lies with the parties to the marriage.
Basic elements of Criminal Law
According to Prof. Paranjee, an effective criminal law must have the following four elements:
Politicality
This implies that infringement of rules enacted by the state will be regarded as a crime.
Specificality
It means that the provisions of the statutes must be precise, unambiguously adjudging the activity as a crime.
Uniformity
The laws should be applied without any prejudice on the basis of caste, creed, race, sex, etc., thus the laws must be applied to all equally across the nation.
Penal sanction
The dread of being penalised can be instilled in the minds of the people living in a society with the aid of penal sanctions, thus discouraging them from committing a wrong.
Purpose of Criminal Law
As discussed above, civil law deals with the interests of individuals. On the other hand, criminal law deals with the interests of society at large. The main purpose of criminal law is to safeguard the interests of the people and to help maintain social order and stability.
The basic purpose of criminal law can be defined as follows:
To protect, serve and limit the actions of individuals
Laws serve multiple purposes in the criminal justice system. However, the main goal of criminal law is to protect, serve, and safeguard human actions and to help guide the behaviour of humans.
In the modern era, there are three choices to make when it comes to handling criminals, namely:
Capital punishment,
Private action, and
Executive control.
A point must be noted that, even though both private action and executive control are beneficial in terms of expenses and speed, they present huge dangers that prohibit their usage unless in extraordinary circumstances.
To punish the offender
The second purpose of criminal law is to penalise the wrongdoer. Punishing the wrongdoer is the most crucial purpose of criminal law as it dissuades them from repeating the crime again while also making the offender pay for the crime committed. Retribution does not mean imposing physical punishment or imprisonment on the culprit, but it may also mean things like rehabilitation and financial retribution, inter alia.
To protect society from criminals
The last purpose of criminal law is to keep society safe from wrongdoers. Criminal law is a medium through which the community safeguards itself from those who pose a risk to it. Such a motive is usually attained via passing verdicts or judgements; these are meant to act as a way of impeding the criminals from committing the same offence again later.
Criminal law has numerous purposes, but it depends on the perspective of people or how they see it. A few of them are enacted to distinguish offenders from the community, rehabilitate the culprit, and penalise the offender. Nonetheless, the two main functions of criminal law are as follows:
To create an interpretation of right and wrong in society, and
To punish the lawbreakers.
General objectives of Criminal Laws
According to Wechsler, “the purpose of penal law is to express the social condemnation of forbidden conduct, buttressed by sanctions calculated to prevent it”. The general objectives of criminal laws include-
Protecting individuals and property
For the survival of any society, a feeling of security and safety is one of the key aspects, which is why maintaining peace and order in the community becomes essential. Safety in society includes personal safety (also referred to as safety of life and liberty) and the safety of property. In order to ensure safety, it is important that an efficacious panel system that is capable enough to deal with the violators of the law has been created. Doing so will also enable the general public to live in peace and with no fear of injury to their life, limb, or property, for that matter. Therefore, the primary objective of criminal law is to safeguard the public by maintaining law and order in society.
Prevention/deterrence of criminal behaviour
One of the major reasons for deduction in criminal behaviour is the criminal laws demonstrating a sufficient deterrence in anti-social behaviour. Deterrence can be referred to as a danger, difficulty, or situation that prevents a person from committing a wrong.
The presumption inherent in criminal law is that individuals would be reluctant to commit a crime or may not even commit a crime considering the brutality of the penalty thus inflicted upon the commission of such an act. Consequently, if enough people fear punishment, the rate of criminal activity will decline.
Punishing a criminal act
It is a common understanding that all the crimes committed in society cannot be penalised and not every criminal activity can be averted from happening. Thus, an inescapable level of crime will unquestionably exist in society. Hence, criminal activities are penalised for the sake of punishment. So, say, a criminal steals something without prior payment or inflicts an injury on an individual without proper cause for doing so, the criminal law will make the offender or perpetrator pay for it by depriving him/her of his/her liberty for a time period.
Rehabilitating a criminal
Once a criminal is punished, they will serve their sentence behind bars. However, this is not where the criminal justice system ends; our government has created several programmes to enlighten and train criminals in legitimate occupations and practical skills like weaving, stitching, construction activities, etc. Hence, upon being released, they do not have a reason to return to a life of crime and also have the means to earn their livelihood.
Types of punishments under Criminal Law
Jeremy Bentham, one of the leading pioneers in shaping the criminal justice system, stated that “punishment itself was an evil, but a necessary evil,” so let’s have a look at some of the necessary-evil punishments.
A note must be taken that, under Section 53 of the IPC, there are 5 types of punishments mentioned, each of which is discussed in depth below, namely:
Death;
Imprisonment for life;
Imprisonment, which has two descriptions, namely:
Rigorous imprisonment, that is, with hard labour, and
Simple imprisonment;
Forfeiture of property,
Fine.
There are severaltypes of punishments under criminal laws in India, including the ones mentioned above. Let us have a look at them:
Capital punishment / death penalty
The punishment of death is also referred to as capital punishment. Under this punishment, a culprit is hanged to death.
Such a type of punishment needs authorization from the government and a verdict passed by the court and is delivered only in the rarest of rare cases. It is the highest form of punishment awarded under the IPC and has always been a subject of debate. Contentions are made both in favour of and against the retention of capital sentences as a form of punishment.
Provisions under the Indian Penal Code for the death penalty
The death penalty can be provided for offences under the following sections of the IPC:
Section 121 (Waging, or making an attempt to wage a war, or assisting in the waging of a war, against the Government of India),
However, it is not mandatory for the court to impose the death penalty in these sections.
Lawsuits in India where the death penalty was held feeble
Jagmohan Singh vs. State of Uttar Pradesh (1972)
In this case, it was held that the death penalty is unconstitutional and thus invalid as a penalty. The Hon’ble Supreme Court asserted that depriving someone of their life is constitutionally licit only when it is done in accordance with the procedure established by law.
State of U.P. vs. M.K. Anthony (1985)
In this shocking case, the accused was held guilty of killing his ailing wife and his two children as he was incapable of providing funds for her operation and did not have anyone to support him in taking care of the children after their mother.
Here, the Apex Court, while passing an amusing verdict, stated that since the offence committed was not perpetrated under any lust, feeling of vengeance or gain but out of sheer poverty, a punishment involving life imprisonment would be apt and not capital punishment.
Bachan Singh vs. State of Punjab (1980)
The Supreme Court, in this very famous case, was faced with the dilemma of whether the death penalty, imposed for some offences under the IPC, is constitutionally valid or not.
By a four-to-one majority verdict, the Supreme Court reached a verdict that the death penalty is valid and does not constitute an “unreasonable, cruel, or unusual punishment”. However, the Court ruled that the death penalty must be imposed only for “special reasons” and in the “rarest of rare cases.” Thus, only if the cases fall under this theory, may capital punishment be imposed. However, the court did not emphasise the crimes that fall under this category in this case.
Nonetheless, the courts have from time-to-time affirmed that cases like honour killings, assassinations, genocide, brutal murder, etc., fall under the definition of ‘rarest of the rare cases’.
Interesting fact: The phrase ‘hang to death’ was replaced by ‘hang until death’ after subsequent amendments in the criminal laws for capital punishment. There is an astonishing story behind this, wherein Jawaharlal Nehru, an eminent lawyer, brilliantly played with the words of the law while protecting his client, who was charged with blowing up a British officer’s horse carriage. Here, the magistrate ordered that the person be hanged in public, and on the day of execution, as soon as he was hung, Nehru sent men to hold on to his legs and save him. When the matter was taken to the court, he contended that the magistrate had written “hang him” and that the man was being hanged, but the sentence did not say “hang him until death.” Thus, following the principle of double jeopardy, the defendant could not be hanged again and his life was rescued.
Imprisonment
Imprisonment means snatching away an individual’s freedom and putting him behind bars. There are 3 types of imprisonment under the IPC, which are as follows:
Life imprisonment
Under life imprisonment, an offender who is held guilty of committing an offence has to remain in prison until death occurs, or until he is pardoned, or for a fixed period of time.
In ordinary words, imprisonment for life refers to imprisonment for the whole of the remaining term of the offender’s natural life. According to Section 57 of the IPC, the period for life imprisonment is 20 years for the purpose of calculation. A point must be noted that imprisonment for life can never be simple imprisonment; it is always rigorous imprisonment.
Interesting fact: According to Section 433(b) of the Criminal Procedure Code and Section 55 of the IPC, the government has the power to ameliorate or suspend the sentence of imprisonment for life to imprisonment for a term of not more than 14 years. However, life imprisonment cannot be less than 14 years.
Simple imprisonment and rigorous imprisonment
Under Section 53 of the IPC, there are two types of imprisonment- simple and rigorous. Further, according to Section 60 of the IPC, the competent court has the option of deciding the nature of sentencing. It can be of various types, like:
Wholly or partly rigorous; or
Wholly or partly simple; or
Any term to be rigorous and the rest simple.
Simple imprisonment
In simple imprisonment, an offender who is held guilty of committing crimes such as wrongful restraint or defamation is kept behind bars without any hard labour; thus, only light duties are to be performed by them.
Rigorous imprisonment
In rigorous imprisonment, an offender is put behind bars and has to mandatorily perform hard labour duties like agriculture, carpentry, digging the earth, breaking stones, etc.
Rigorous imprisonment is compulsory for the following two sections of the IPC:
Section 60 (Giving or fabricating false evidence with intent to procure conviction of capital offence).
Section 449 (House-trespass in order to commit an offence punishable with death).
Forfeiture or confiscation of property
Forfeiture indicates the loss of property of the wrongdoer, meaning the state seizes or takes into possession the property (which can be movable or immovable) of an offender. Such a punishment is often used for offences involving the breach of traffic and revenue laws.
Forfeiture of property as punishment is proffered for the following two sections of the IPC:
Section 126 (committing depredation on territories of Power at peace with the Government of India), and
Section 127 (Receiving property taken by war or depredation mentioned in Sections 125 and 126).
This type of punishment is considered appropriate for minor offences and crimes related to property.
Levying fines
The punishment of a fine, in addition to serving the purpose of deterrence, also serves three other purposes, namely:
It may help to support the prisoners.
It can generate expenses for prosecuting the prisoners.
It may be used to remunerate the agonised party.
Such a punishment is very beneficial for offenders who are not hardened criminals, but care must be taken that there is no excess fee levied upon the offenders, and it should not go to the extent that the person has to almost forfeit their property to pay the amount.
The court may impose a fine along with imprisonment or as an alternative to imprisonment. It generally is as per the discretion of the court. As per Section 64 of the IPC, a court may impose imprisonment if the wrongdoer fails to furnish a fine.
Solitary confinement
Solitary confinement refers to keeping the inmate isolated and away from any sort of communication or contact with the outside world. In order to avert the perils associated with this kind of punishment, Sections 73 and 74 lay down the limitations beyond which solitary confinement cannot be imposed under Indian penal law.
The term period for solitary confinement under the aforementioned sections is as follows:
Solitary confinement shall not exceed one month if the term of imprisonment is less than or up to six months.
Solitary confinement shall not exceed two months if the term of imprisonment is more than six months but less than one year.
Solitary confinement shall not exceed three months if the term of imprisonment is more than one year.
Moreover, the total period of solitary confinement will not go beyond three months in any circumstances. It cannot go beyond fourteen days at a time with intervals of fourteen days in between or seven days at a time with seven days intervals in-between, in cases where the substantive sentence exceeds three months’ imprisonment.
In Charles Sobraj vs. Superintendent, Tihar Jail (1978), the Hon’ble Supreme Court made an observation that solitary confinement is the harsh isolation of a prisoner from the community of fellow prisoners and should be imposed only by following a just procedure and in exceptional cases.
Deportation
Another method of punishment is deportation, which is also known as transportation, banishment, or ‘Kaalapani’, and involves the elimination of incorrigible or dangerous offenders by transporting them to distant places, thus removing them from their community.
This form of punishment was abolished in England a long time ago and has now been abolished in India as well.
Corporal punishment
Corporal punishment was a very common form of punishment until the 18th century. It includes the following:
Flogging
The dictionary meaning of the word ‘flogging’ is ‘to whip or beat with a strap on a stick as a punishment’. The primary motive of this kind of punishment is deterrence.
In India, under the Whipping Act, 1864, whipping was identified as being one of the methods of punishment. It was later replaced by a similar Act in 1919, which was ultimately abolished in 1955, considering its inhumane nature.
Mutilation
Mutilation is another type of corporal punishment wherein the offender’s body parts are cut off as an effective measure of deterrence and to prevent crime in the community. An example of mutilation may include the chopping off of hands in cases of theft. Another example may be the private parts of a sex offender being cut off. In India, it was quite prevalent during the Hindu period.
Branding
Branding, which is recognised to be one of the cruellest forms of punishment, involves the marking of a criminal’s forehead for identification and public disgust. An example of branding would include the marking of an offender’s head with the letter ‘t’ for theft. In India, such a mode of punishment was prevalent during the Mughal period.
Chaining
Chaining was yet another form of punishment wherein the hands and legs of the culprits would be chained together with iron rods. This form of punishment is now occasionally used in the current prison system.
Indeterminate punishment
An indeterminate punishment is another type of punishment which involves the sentence of imprisonment not being set. Thus, the time period is left to be decided at the time of granting the award, so, if the accused shows improvement, the sentence may be brought to an end.
Stoning
Punishment like stoning is quite brutal and merciless in nature. It was in practice in the medieval period and in Islamic countries like Pakistan and Saudi Arabia for sex offenders.
Cancellation of licences
This is yet another form of punishment wherein the licence holder’s licence is suspended and/or cancelled in cases of violation. For instance, a driver’s licence is suspended or revoked in the event the driver is found guilty of drunk driving. Another example could be the revocation of a manufacturer’s licence if it is in violation of the Environment (Protection) Act, 1986.
Theories of punishment under Criminal Law
There are eight major theories of punishment. They are as follows:
Deterrent theory of punishment
The primary motive of deterrent punishment is to portray the object of the futility of crime, thereby teaching a lesson to others. Thus, deterrence acts on the motive of the wrongdoer, whether actual or potential. The main idea behind deterrent punishment is the prevention of crime by inflicting an exemplary sentence on the wrongdoer. By doing so, the state seeks to threaten the members of the community and thus prevent them from committing any crime. Furthermore, such an act also issues a warning to other offenders and potential lawbreakers.
In Phul Singh vs. State of Haryana (1980), a young philanderer (a person who has several sexual partners- usually a male having several women as sexual partners) was held guilty of raping a 24-year-old girl who lived next door. The Sessions Court passed a sentence of 4 years of rigorous imprisonment and the High Court upheld the same. However, when this matter reached the Supreme Court, the sentence was reduced to 2 years of rigorous imprisonment as the abuser was not a habitual offender and had no ferocious antecedents. The Supreme Court made an observation that “the incriminating company of lifers and others for long may be counterproductive, and in this perspective, we blend deterrence with correction and reduce the sentence to rigorous imprisonment for two years.”
Preventive theory of punishment
If the deterrent theory aims at putting an end to crime by creating fear in the minds of the people, the preventive theory aims at preventing the crime by disabling the criminal or lawbreaker. For instance, by giving the death penalty to a criminal or by putting him behind bars or by suspending the driving licence of a lawbreaker, the preventive theory prevents the repetition of the act thus committed.
The preventive mode of punishment is effective in the following manner:
By creating the fear of punishment in all potential lawbreakers;
By incapacitating the wrongdoer by instantly engaging in a crime; and
By transforming the wrongdoer through a process of reformation and re-education so that the crime is not repeated again.
Reformative theory of punishment
As per the reformative theory, a crime is committed as a result of the clash between the character and intent of the culprit. An individual may commit a crime either because the temptation of the intent is intenser or because the constraint imposed by character is weaker. The reformative theory has its main focus on strengthening the character of the wrongdoer in order to fend them off from falling prey to their own enticements. This theory assesses punishment to be curative or to perform the role of medicine as, according to this theory, crime is like a disease. Further, this theory upholds that ‘you cannot cure by killing’.
Several reformists are of the view that since a culprit stays in prison to be re-educated and re-shape his personality into a new mould and to be transformed into a law-abiding citizen, prisons must be turned into comfortable dwelling houses. However, in a country like India, wherein there are millions of people living below the poverty line, such an act may act as a motivation to commit wrongs.
“The rule of law meets with its Waterloo when the state’s minions become law-breakers and so the court, as the sentinel of the nation and the voice of the Constitution, runs down the violators with its writ and secures compliance with human rights even behind iron bars and by prison warders.”
The aforementioned judgement deals extensively with the shocking conditions prevailing in Indian prisons and has several recommendations for prison reforms.
Retribution theory of punishment
While other theories of punishment consider punishment as a means to some other end, the retributive theory views it as an end in itself. It regards it as absolutely lawful that evil should be returned for evil, and an individual should be dealt with in the way he/she deals with others. To put it in other words, an ‘eye for an eye’ and ‘a tooth for a tooth’ are assessed to be the rule of natural justice.
Unfortunately, this theory does not pay heed to the rationales of crimes, nor does it strike at the expulsion of the causes. Further, it also disregards the fact that two wrongs cannot really make a right. Moreover, this theory appears to disregard that if vengeance is the spirit of punishment, violence will be a way of prison life. This is why the primary intent of true punishment should be to take the place of justice for injustice, to make the law-breaker restore or compensate the victim, and by such restoration and repentance, the spirit of the sufferer be assuaged.
Expiatory/ compensatory theory of punishment
The proponents of this theory of punishment assert that the main motive of delivering a penalty is self-realisation, so, if the wrongdoer, after committing a crime, acknowledges his sin, then he must be pardoned. To put it simply, compensation is provided to the sufferer for the damage caused by the accused. In this manner, the wrongdoer is made to realise the identical suffering they have caused to the sufferer.
Incapacitation theory of punishment
Incapacitation means ‘being deprived of strength or power’. This theory incapacitates the criminals so that they cannot further commit an offence. A sense of fear also grows in their minds as well as that of the future generations before they commit any crimes in the foreseeable future, thus discouraging them.
Utilitarian theory of punishment
This type of punishment is considered to be one of the most brutal punishments, and it applies to dissuasion techniques for averting criminals from committing an offence. Such punishments include crippling or disablement, inter alia, and the effect of such a theory could be positive or negative.
Multiple approach theory of punishment
In cases where a single theory fails to meet the aim or object, a blend of two theories is the choice. Thus, the court should take a judicious approach while choosing the theories of punishment.
Hierarchy of Criminal Courts in India as stated in criminal statutes
The Indian criminal courts are formed in such a manner that any aggressive party can seek justice from them. Disgruntled citizens can also appeal to the higher courts in case they feel the lower courts have not provided justice in a manner that is just. The hierarchy of criminal courts in India is as follows:
The Supreme Court of India
The Supreme Court of India was established under Article 124 of Part V, Chapter IV of the Indian Constitution. It is the highest Court in the country and is situated in New Delhi, the capital of India.
The High Courts of India
The second level of the hierarchy is the high courts. They are the highest authorities in a state’s judicial system. They are governed by Article 141 of the Indian Constitution and are bound by the verdicts passed by the Supreme Court.
Subordinate/ lower courts
Apart from the Supreme Court, the high courts, and the other courts established by any statute, the following courts must exist in each and every state, as per the Criminal Procedure Code:
A) Metropolitan Courts,
B) Sessions Court,
C) Chief Metropolitan Magistrate,
D) First Class Metropolitan Magistrate,
E) District Courts,
F) Sessions Court,
G) First Class Judicial Magistrate,
H) Second Class Judicial Magistrate, and
I) Executive Magistrate.
Stages of crime as discussed in Indian Criminal Law
Whenever a crime is committed, there is a proper strategy or stages behind it. In the case of every crime, first there is an intention to commit a wrong, followed by the preparation to commit it, thus constituting the second stage. Thirdly, there is an attempt to commit the wrong, followed by the fourth and last stage, i.e., accomplishment. Each stage is discussed in brief below.
Intention
Intention is the first stage of committing a crime and is oftentimes regarded as the mental or psychological stage. At this stage, the offender decides his intent and the manner in which he would proceed towards committing the crime. The person cannot be penalised at this stage as mere intention or having a mental concept to commit a wrong would not constitute an offence.
Preparation
Preparation for committing a crime is the second stage of the crime, and it consists of organising the essential resources for performing the criminal act. Mere intention or preparation are not punishable as in several cases it becomes difficult or at times impossible for the prosecution that the preparations in question are for the commission of the specific crime.
Attempt
An attempt is a straightforward move towards the commission of a crime after the preparation of an agenda. As per the law, an individual is guilty of attempting to commit a wrong even if the facts are such that carrying out the offence seems to be impossible.
Accomplishment
The last and final stage of committing an offence is the successful completion of the act, so, if the person succeeds in committing a crime, he/she will be culpable of the whole offence. Moreover, if he/she fails to commit the crime, he/she will be guilty of his attempt.
An example of accomplishment may include the following:
A fires a bullet at B with the motive of killing him. In such a case, if B is dead, A will be held guilty of committing the offence of murder, whereas, if B is injured, it will be a case of an attempt to murder.
Important elements of criminal offences under Indian criminal laws
FIR (First Information Report)
An FIR is a written document which is filed by the police to report a criminal offence to be investigated by the authorities. An individual can file an FIR by visiting a police station in the locality where the crime took place.
Under Section 154 of the Cr.P.C., the law gives a preference of choosing to provide information either orally or in writing.
Bail
A bail refers to the temporary discharge of an accused in criminal cases, wherein the trial is pending and the court is yet to reach an inference. The laws relating to Brazil and bail bonds are discussed under Section 436-450 of the Cr.P.C.
Evidence establishes facts. It is used in trials to establish the validity or invalidity of certain facts. For example, the evidence of a bloody fingerprint would aid in speculating the fact that the individual was present at the scene of the crime.
There are four types of evidence, namely:
Real evidence,
Demonstrative evidence,
Documentary evidence, and
Testimonial evidence.
Offences
Depending on the nature and gravity of the offence, they can be categorized as follows:
Cognizable and non-cognizable offences.
Bailable and non-bailable offences.
Compoundable and non-compoundable offences.
Cognizable and non-cognizable offences
Cognizable
A cognizable offence is an offence in which the police can arrest an accused without a warrant and can carry out an enquiry without seeking prior approval from the court. Under Section 154 of the Criminal Procedure Court, a police officer has to lodge an FIR in cases of cognizable offences, and he can also conduct an investigation before filing the FIR.
Examples of cognizable offences
Some of the examples of a cognizable offence are as follows:
Waging or attempting to wage war, or abetting the waging of war against the government of India,
Murder,
Rape,
Dowry death,
Kidnapping,
Theft,
Criminal breach of trust,
Unnatural offences, etc.
Non-cognizable offences
A non-cognizable offence is an offence wherein a police officer cannot arrest the accused without a warrant, nor can he start an enquiry without seeking approval from the court.
Examples of non-cognizable offences
Some of the examples of non-cognizable offences include:
Forgery,
Cheating,
Defamation,
Public nuisance, etc.
Bailable and non-bailable offences
Bailable
Bailable offences are those crimes which are not very serious in nature. In such cases, the police have the right to grant bail, which is one of the rights of an arrested person. Herein the accused must be released on the execution of a ‘bail bond’ with or without providing any sureties.
As per Section 50 of the CrPC, a police officer must apprise the arrested person that he/she has the right to be released on bail in cases of a bailable offence. Further, as per Section 436 of the CrPC, when an accused is arrested for a non-bailable offence without a warrant, then that person must be released on bail. The bail amount can be fixed at the discretion of the officer of the court.
Examples of non-cognizable offences
Some examples of bailable offences include:
Actively participating and being a member of an unlawful activity,
Rioting, armed with a lethal weapon,
Giving a false statement in matters of an election,
Selling any food or drink even after having knowledge of it being dangerous or poisonous, etc.
Non-bailable offence
Non-bailable offences are grave offences where bail is a privilege and it can only be approved by the court. On being arrested and taken into custody for an offence which is of a serious or non-bailable nature, the offender cannot ask to be released on bail as his/her right.
Examples of non-cognizable offences
Some examples of bailable offences as listed under the Indian Penal Code include:
A compoundable offence is an offence wherein the person filing the complaint, i.e., the victim, agrees to reach a settlement and get the charges dropped against the accused. Nonetheless, such a settlement has to have occurred with bona fide intent and not for any sort of consideration to which the complainant may be entitled to.
In India, compoundable offences are covered under Section 320 of the CrPC. They are of two distinct types discussed in the tables under Section 320, namely:
Compounding offences where the permission of the court is not required
There are several offences where the permission of the court is not needed to take back the case or reach a settlement outside the court. Examples include:
Adultery,
Causing hurt,
Defamation,
Criminal trespass, etc.
Compounding offences where the permission of the court is required
There are several offences where the permission of the court is not needed to take back the case or reach a settlement outside the court. Examples include:
Theft,
Criminal breach of trust,
Voluntarily causing grievous hurt,
Assaulting a woman with the motive of outraging her modesty, etc.
Non-compoundable offences
Non-compoundable offences are those which cannot be compounded, meaning such offences cannot be settled outside the court nor can they be taken back as the nature of the offence is grave, the injured party as well as society are affected by such an act, and the accused must not be allowed to walk free. Further, the state, i.e., the police files the case; thus, the question of the complainant reaching a settlement does not exist.
All those offences which are not covered under Section 320 of the CrPC are non-compoundable offences. Examples include:
Causing hurt by dangerous weapons or means voluntarily,
Wrongfully confining a person for more than 3 days,
Assault or criminal force on a woman with the motive of outraging her modesty, etc.
Types of criminal offences
Crimes can be classified according to their heinousness. There are several acts across the globe that are deemed to be criminal offences. However, these acts can be classified into five majorcategories, namely:
Criminal offence against a person
Crimes against a person or an individual are those that cause physical or mental harm to another person and can be classified into two categories, namely:
Forms of homicide, and
Violent crimes.
In times when the severity of crimes is so acute that it causes death, the person may be charged with any of the types of homicides, including:
first – degree murder,
Voluntary manslaughter, or
Vehicular homicide.
Contrarily, violent crimes that are also grave include:
Assault and battery,
Arson,
Child abuse,
Domestic abuse,
Kidnapping,
Rape and statutory rape.
Criminal offence against property
Usually, crime against property includes the interference with the property of another person. Even though such crimes are mostly committed against the property of another party, it may also lead to physical or mental harm or both to a person. Some instances of property crimes are:
Theft crimes include burglary, larceny, robbery, auto theft, and shoplifting.
Robbery, etc.
Statutory criminal offences
Statutory crimes are those offences that are considered a crime by way of statute, and they often overlap with the other types of crimes. Three notable types of statutory crimes include:
Alcohol related crimes,
Drug crimes, and
Financial/white collar crimes.
These types of crimes are usually restricted by special statutes like those relating to the use of drugs, banned substances (like heroin, marijuana, etc.), or financial offences. It is done so for the community in the hope that individuals will avoid committing such wrongs.
Further, under statutory criminal offences, there exist alcohol related crimes, namely:
Driving under the influence,
Minors owning alcohol,
Drinking in public places,
Providing alcohol to minors,
Refusing to perform a field sobriety test,
Refusing to perform a breathalyser or provide a blood sample, etc.
Moreover, traffic offences are also covered under this law, some of them include:
Driving on a suspended or revoked licence,
Driving without a licence,
Hit-and-run mishaps,
Driving in a reckless/negligent manner, etc.
Inchoate criminal offences
Inchoate crimes are those crimes that were initiated but not completed. Such an offence helps in committing another offence. In addition, for such acts to be regarded as criminal offences, the individual must take active or substantial steps towards the completion of the crime in order to be held guilty. The punishment for committing such an offence can be severe to the same degree that the underlying crime should be punished, whereas in other cases the punishment might be less severe. Some instances of inchoate criminal offences are:
Aiding,
Abetting,
Conspiracy,
Attempting, etc.
Financial and other criminal offences
Finally, financial crimes are those offences that involve deception or fraud for economic gain. They are carried out by acts such as fraud, deception, inter alia. These are oftentimes indicated as white collar crimes and include criminal offences such as:
There are some crimes that are regarded as offences in rem, i.e., against society in general, wherein the state acts as the prosecution in court. Such offences are usually criminal offences, and they fall under the Concurrent List.
Top 3 criminal laws in India
The top 3 laws that govern criminal law in India, inter alia, are the IPC (IPC) of 1860, the Criminal Procedure Code (CPC) of 1974 and the Indian Evidence Act, 1872. Let’s have a brief look at each of them.
The Indian Penal Code, 1860
The Indian Penal Code (IPC) is the main document that majorly governs the criminal acts and the penalties an offender must be charged with. The primary object of ratifying such a Code is to provide a general, all-around, exhaustive Penal Code for all the offences in India.
The Indian Penal Code is applicable to the whole of India. The penalties for committing a wrong are extended within India as well as outside India, but they must be tried within India. The IPC is also applicable to offences which are committed at any place outside India by an individual on any ship or aircraft registered in India, wherever it may be, thus having an extra-territorial authority. The reason being, it is based on the proposition that every nation has the right to take charge to control and rule in its own jurisdiction.
Several crimes, such as murder, kidnapping, theft, etc., are covered under the IPC.
Drawbacks of the IPC
The main drawbacks of the IPC are as follows:
Age-old laws
Colonial ideas still exist in the Code. It is based on the colonial attitude of Britishers to rule India. For instance, Section 375 of the IPC that discusses rape needs a gender-neutral definition. Presently, this Section does not include men, eunuchs, hijras, or boys as victims of rape and only considers women as victims of rape.
Prejudicial towards women
There are several laws that encourage patriarchal attitudes and are prejudicial towards women. Most of the criminal laws in India are based on the male perspective. For instance, Section 125 of the CrPC states that a husband is supposed to maintain his wife, children and parents in case they are not able to maintain themselves, thus proving that men are superior to the rest. The concept of gender equality must be kept in mind before passing any such laws.
Misuse of sedition law
Sedition laws are oftentimes misused rather than utilised by the state. It is defined under Section 124A of the IPC and was originally inserted by the Britishers in 1898 to control any revolt against them and to suppress the freedom movements. But now, this Section is used incorrectly against individuals who control the government. A recent example of misuse of sedition law can be the arrest of Disha Ravi in 2021 in connection with a toolkit on the farmer protests. She was later granted bail by the trial court in Delhi.
No proper definitions of several activities and a dire need to redefine others
Several offences, like tech crimes, cyber crimes, and sexual offences, need to be clarified. For instance, marital rape is still not recognised as an offence under any legislation explicitly. One positive instance of this could be the decriminalisation of Section 377, which criminalised homosexuality and was based on the Victorian regime.
Policing
Under the present IPC, there is a risk of unreasonable police interference, also known as policing, this will in turn lead to harassment of people. For instance, as per Section 294 of the IPC, the act of causing annoyance to the public by performing any obscene activity in public places is punishable. However, there is no proper definition of the word ‘obscene’, and thus, the police often use it to their unfair advantage.
Punishments based on judges’ discretion
There are several provisions, say mob lynching, wherein the maximum punishment, sentence, or fine is not mentioned. Thus, the punishment becomes discretionary for the judge to deliver and may differ as per the events or situations.
No place for reformation or community service
The punishments provided under Chapter III of the IPC are quite conservative and archaic, and only provisions for punishments and fines are enacted underneath it. In this century, there is a dire need for the reformation of such laws. For instance, under Chapter III community service or reformation of criminals in different ways apart from fines and punishments could be inculcated.
The Criminal Procedure Code, 1974
The Criminal Procedure Code (CrPC) is a procedural law that talks about how police machinery is to function as far as the enquiry and process are to be adhered to by courts at the time of enquiry/investigation or trial. When the Code of Criminal Procedure came into effect in 1973, the Code of Criminal Procedure, 1908, was already in existence. There are 37 chapters, 484 sections, 56 forms, and two schedules in the existing Criminal Procedure Code of 1973. The CrPC has several offences categorised under it, such as bailable, non-bailable, cognizable, and non-cognizable offences. Each of them is discussed above in brief.
A point must be taken into consideration that if significant law (IPC) is the most important element to safeguard society, a critical method to attain and execute substantial law is procedural law.
The procedural treatment for distinct offences varies. Several steps, like filing an FIR, gathering evidence, and starting an enquiry, are all discussed in the CrPC.
The Indian Evidence Act, 1872
The Indian Evidence Act came into force on 1st September 1872, and applies to the whole of India as per Section 1 of the same. It has regulations and allied issues that regulate the admissibility of evidence in the Indian courts. Presently, it consists of 167 sections distributed across 11 chapters.
Interesting fact : Previously, the Act was applicable to the whole of India except for the State of Jammu and Kashmir, but after the Jammu and Kashmir Reorganisation Act, 2019, the words “except the State of Jammu and Kashmir” were deleted.
Applicability of the Act
To what proceedings does the Act-
Apply (S. 1)
Not apply (S. 1)
This Act is applicable to all the proceedings before any court, including a court-martial (except those specified in the second column).
Several types of evidence are discussed under this Act, namely:
Oral evidence
Documentary evidence
Primary evidence
Secondary evidence
Real evidence
Hearsay evidence
Judicial evidence
Non-judicial evidence
Direct evidence
Indirect/circumstantial evidence
More information on the same can be obtained here.
Other criminal laws in India
The Criminal Law Amendment Act, 2013
The Criminal Law Amendment Act, 2013 was passed after the Nirbhaya case (discussed below), wherein a female student was gang raped in 2012. This Act modified several Acts, especially the ones mentioned above, i.e., the IPC, the CrPC, and the Indian Evidence Act.
This Act recognized and incorporated several offences in the IPC, including:
Sexual assault which causes death or injury causing a person to be in a persistent vegetative state (Section 376A).
Furthermore, the Act amended the already existing acts to make them more stringent. One of the most important amendments could be the addition and broadening of the definition of rape under Section 375 to include acts other than penetration. Additionally, Section 375 was substituted with Sections 370 and 370A. This Act was further amended in 2018.
The Narcotics Drugs and Psychotropic Act ( NDPS Act), 1985
The Narcotics Drugs and Psychotropic Act, 1985, also referred to as the NDPS Act, came into existence on November 14th, 1985. It has gone through amendments thrice. Until 1985, there were no distinct laws related to narcotics. The NDPS Act attempts to forbid producing, manufacturing, cultivating, possessing, purchasing, selling, transporting, storing, and/or consuming any narcotic or psychotropic substance across India.
The NDPS Act has been amended thrice in 1989, 2001, and 2014.
The Prevention of Corruption Act (PCA Act), 1988
The Prevention of Corruption Act, 1988 was enacted to curb corruption and malpractices in government agencies and public sector businesses in India. This Act consists of 5 chapters, which are spread across 31 sections. The original 1988 Act had a limited success rate in curtailing corruption and prosecuting and punishing public officers or servants involved in such corrupt activity, which is why the Act has been amended twice, once in 2013 and the second time in 2018.
Under the PCA Act, the Central Government has the authority to appoint judges and try the following cases:
Those offences are punishable as per this Act.
A conspiracy to commit or a shot at committing an offence that is specified under the provisions of this Act.
The Prevention of Food Adulteration Act (PFA Act), 1954
Both houses passed the Prevention of Food Adulteration Bill, which received the assent of the President on September 29th, 1954. It came into force on 1st June 1955 as the Prevention of Food Adulteration Act (PFA Act), 1954.
To make laws for the prevention of food adulteration.
To safeguard the public from any toxic, lethal and deleterious foodstuff.
To put a stop to or seize the sale of substandard food.
To protect the interests of consumers by banishing sharp practice/trickery.
The PFA Act has been amended thrice in 1964, 1976, and 1986.
Criminal laws enacted explicitly for women
The Dowry Prohibition Act, 1961
The Dowry Prohibition Act, 1961, which came into existence on May 1st, 1961, was an attempt to avert the offering and accepting of dowry. Along with this Act, several sections of the IPC were also amended to provide for the guarding of female victims of such a heinous crime. This Act is applicable to all individuals of all religions throughout India.
The penal provisions under the Act for committing such a crime are as follows:
Section 3
Under Section 3 of the Act, if any person gives or takes or abets the giving of dowry, he/she is liable for a punishment which shall be not less than 5 years of imprisonment and a fine of not less than fifteen thousand rupees or the amount of the dowry, whichever is more.
Section 4
Under Section 4 of the Act, if any person makes a demand for dowry, whether directly or indirectly, from the parents or other relatives or any guardian of a bride or bridegroom, he/she shall be punishable by imprisonment for a term not less than six months, but which may extend to two years, along with a fine which may extend to ten thousand rupees.
The Commission of Sati (Prevention) Act, 1987
The cruel and immoral practice of Sati (burning alive the widow with her deceased husband) was quite prevalent in the period from 1680 to 1830.
Interesting fact: The aforementioned Rupkunvar case was the last known case of sati in India. She was an 18-year-old widow who was burnt alive on the pyre of her deceased husband, and this action shook the nation and thus paved the way for new legislation for the abolition of such inhumane practices.
The Indecent Representation of Women (Prohibition) Act, 1987
There were and still are several sections under the IPC like-
Section 292 and Section 292A (selling, hiring, distributing, etc. any obscene material);
Section 294 (performing obscene acts or playing illicit songs in public),
existing to prohibit indecent representation of women, but these laws were not fruitful, which is why women’s organisations made several protests and representations to pass an ordinance to curb this evil. Eventually, Parliament passed the Indecent Representation of Women (Prohibition) Act, 1987, which became effective on October 2nd, 1987. This Act is applicable to each and every Indian state except for Jammu and Kashmir.
As per this Act, if any individual is found to harass any woman with an indecent representation in the form of books, photographs, paintings, films, pamphlets, packages, etc., he/she will be punished by a minimum of 2 years’ imprisonment.
The Protection of Women from Domestic Violence Act (PWDVA), 2005
The Protection of Women from Domestic Violence Act, 2005, also known as the PWDVA Act, was passed in 2005 and was implemented in October 2006. This Act throws light on the definition of domestic violence as stated under Section 3 of the Act, encompassing the following types of abuse:
Physical abuse,
Sexual abuse,
Verbal and emotional abuse, and
Economic abuse.
It also expands the definition of domestic relationships by including mothers, wives, sisters-in-law, daughters, and daughters-in-law. The main object of the Act is to secure women from any sort of domestic violence.
The Immoral Traffic (Prevention) Act, 1956
Prior to independence, there were certain states that had distinct acts to avert human trafficking. However, they were not sufficient enough, which is why there was a dire need to pass a law in accordance with the same.
Thus, the Suppression of Immoral Traffic in Women and Girls Act, 1956, commonly known as the SITA Act, was passed. This Act was amended in 1986. The title of it has now changed and it is called the Immoral Traffic (Prevention) Act, 1956, which became effective on August 20th, 1986.
Criminal laws enacted explicitly for children
There is no crime committed unless the intention or motive behind doing so is referred to as guilty, meaning the act does not by itself make the man guilty unless his intention was. But as far as a child is concerned, he is totally exempted from criminal liability under penal laws depending upon his age and the gravity of his understanding for committing such an act. For instance, under the IPC, no child commits an offence under the age of 7 years. The following offences deal with crimes committed by a child under the IPC:
It states that nothing is an offence committed by a child whose age is above seven years but below twelve years and who does not have the maturity to reckon the outcome of the act thus committed.
Interesting fact: There is a Latin maxim called “doli incapax” meaning ‘incapable of doing any harm/wrong’ or ‘incapable of committing a crime’. It is a presumption that a child is not capable of committing an offence and the aforementioned sections are based on the same principle.
The other laws enacted only for children are as under:
The Juvenile Justice (Care and Protection) Act, 2000
Any individual under the age of 18 was considered a minor and was never tried as an adult. This was the law which caused fury amongst the Indian public in the infamous ‘Nirbhaya Devi gang rape case‘, an incident which distressed the whole country on December 16, 2012.
This Act was enacted for the care, protection, maintenance, welfare, training, education, and rehabilitation of neglected or delinquent children and for the trial of delinquents in the Union territories.
The Protection of Children from Sexual Offences (POCSO) Act, 2012
while also cushioning children at every stage of the judicial process.
The framing of the Act seeks to put children first by making it easy to use by including mechanisms for child-friendly reporting, recording of evidence, investigation, and speedy trial of offences through designated special courts. The Act makes abetment of child sexual abuse an offence.
General defences available for a criminal under criminal laws : an India perspective
In India, criminal laws have several punishments enlisted for wrongful activities. However, it is not always important that an individual is penalised for a crime. This is where the general defences come into being. So, under Chapter IV of the IPC, general exceptions, i.e., the exceptions wherein a person may be spared from the wrath of punishment, are discussed. The defences are as follows:
Mistake of fact
At times, a mistake of fact is a good defence, but it must be a ‘mistake of fact’ and not a ‘mistake of law’. It is discussed under Sections 76 and 79 of the IPC.
Illustration
A, a soldier, opens fire on a mob by the order of his superior, in conformity with the commands of the law. In this case, A has not committed any offence.
Judicial acts
The second general exception relates to the actions of judicial officers and courts. They are laid down under Sections 77 and 78 of the IPC.
Here, any act done by a judge acting judicially is no offence.
Illustration
Any judge who sentences a prisoner to death, even if it is done wrongfully, will not be liable to be punished for having caused somebody’s death.
Accident
The third exception relates to acts committed by accident. It is discussed under Section 80 of the IPC. It provides that nothing is an offence which is done by accident or misfortune-
-without criminal intention or knowledge,
-in the doing of a lawful act,
(i) in a lawful manner,
(ii) by lawful means, and
(iii) with proper care and caution.
Illustration
A is working with a hatchet (a small axe). The head of the hatchet flies off and a fatality is caused. Here, if there was no want of proper caution on the part of A, his act is excusable and not an offence under Section 80.
Absence of criminal intent
This exception, namely, absence of criminal intent, can be considered to be those acts which appear to be criminal offences but are committed without any criminal intent, which, obviously, must not be retaliated against. Thus, they are rightly exempted from the category of offences.
Under this head, seven acts are mentioned in Sections. 81 to 86 and 92 to 94. These are as below:
(a) Act done to avoid other harm (Section 81);
(b) Act of a child-
under seven (Section 82),
above seven and under twelve, but of immature understanding (Section 83).
(d) Act of an intoxicated person (Sections 85-86);
(e) Bona fide act for another’s benefit (Section 92);
(f) Communication made in good faith (Section 93);
(g) Act done under compulsion or threat (Section 94).
Act done by consent
The definition of consent is stated under Section 90 of the IPC, which runs in negative terms and discusses what is not consent. Sections 87 to 91 state the laws as to how far an act done by consent will be forgiven by statutes.
Trifling acts
The next general exception talks about acts that are of a trifle (trivial) nature. It is discussed under Section 95 of the IPC and it states that- nothing is an offence because-
It causes, or
Is intended to cause, or
Is known to be likely to cause,
any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.
Rights of private defence
The law relating to private defence is discussed under Sections 96 to 106 of the IPC. This is one right that safeguards an individual and his/her property against the unlawful aggression of others. It is a right inherent in man, and is based on the cardinal principle that it is the first duty of man to help himself.
“This right of defence is absolutely necessary. The vigilance of the magistrates can never make up for the vigilance of each individual on his own behalf. The fear of the law can never restrain bad men so effectually as the fear of the sum total of individual resistance. Take away this right and you become, in so doing, the accomplice of all bad men.” – BENTHAM.
To sum it all up, Section 96 asserts that nothing is a crime which is committed in the execution of the right of private defence.
Top 10 criminals in India
There are several masterminds and gangsters who have caused huge disasters in India. Below is the list of the top 10 most wanted criminals in India.
Dawood Ibrahim Kaskar,
Syed Salahuddin,
Sajid Mir,
Masood Azhar,
Ilyas Kashmiri,
Chhota Shakeel,
Major Iqbal,
Hafeez Muhammad Saeed,
Anees Ibrahim,
Zaki-Ur-Rehman Lakhvi
Top approaches to control crimes
Generally, it is held that those who break the laws are disobedient and are often recognised as culprits or criminals. However, such a generalised statement cannot be held to be accurate when there are great leaders like Mahatma Gandhi or Nelson Mandela who fought against the atrocities of the governments in India and South Africa and brought change in the community with their ideologies.
Crimes are a result of social conditions prevalent in society. Bob Roshier (1989) opined that people, in general, wish to commit a wrong when they have a feeling that they have been wronged, but due to a general belief of conformity and a number of considerations like loss of affection, status, finance, and security, they are persuaded to commit wrongs. He also believed that the fear of punishment or fine also restrains an individual from committing a wrong.
Theorists have pinpointed the following controlling agents of crime and the measures to omit such a crime thereof:
Family
It is oftentimes noticed that children from failed families, broken homes, or those who have been brought up by a single parent will generally, but not always, display certain despicable behaviour. Studies conducted by Morash and Rucker demonstrated that even though it was single-parent families who had the highest number of deviancies, the same was applicable to decent households but those belonging to a group of lower income strata. In developed countries, the government, in order to impede the surging number of delinquents, suggested that such households must readily enable their children to be adopted by a respectable household to ensure the safety of their future.
School
The reward and punishment system in schools has been seen to have a great impact on the school-going youth. A student who fears being disparaged or belittled by fellow classmates would constantly remain in discipline.
As per the studies of Zingraff, it was inferred that schools do have an impact on motivating students to obey the legislation.
Religion
People in general, especially in a country like India, are God-fearing and the belief of being avenged or sent to hell after death has a deterrent consequence on the minds of individuals. Further, the religious writings, speeches, and behaviours of leaders also have a dominant impact on the people to a great extent.
For example, in Islam, the supporters are restricted from earning interest on money. This prevents the following supporters from acting in a way that might lead to financial fraud or even speculative acts that would lead to economic crime.
Social disparity
Engles, a renowned philosopher, once quoted that just like water will turn into steam after reaching a certain boiling point, an individual who is demoralised will also tend to become a criminal at some point of time. An observation has been made that there is an upsurge in crime rates, which has resulted in creating more impoverished conditions for the needy.
Police
Police are deemed to be a formal agency for the eradication of crimes in society and they are entrusted with the task to detect, investigate and control crimes. A policeman is also authorised with the power to file a case against an individual if he suspects him to be guilty. This kind of power, which is made available to the police, makes them an efficacious, crime-controlling agent.
Penalties and punishments
Crimes are often controlled by punishing the offender via judicial machinery. Such a punishment instils fear in the minds of the offenders and further prevents them from committing a crime, along with creating a deterrent effect on the minds of potential criminal(s). Usually, offenders are fearful of punishment like capital punishment, imprisonment, or even a fine, which is why most offenders are fearful of the idea of committing a wrong.
Several social wrongs can be put to sleep, provided the authorities can control the execution of such activities. For example, a manufacturer who is held liable for disposing of toxic chemicals in the open can be controlled by holding up his manufacturing licence.
Way forward
The need for reforms in Indian criminal laws
Recently, the Government of India has taken an initiative to amend criminal laws like the IPC, the CrPC, and the Indian Evidence Act. These laws were enacted during the British period, which more or less is still similar even in the 21st century, which is why there is a dire need for reforms in these age-old acts. The key reasons for bringing about a reformation in criminal law are as follows:
Based on colonial era
The criminal justice system is a replica of the British colonial jurisprudence, which was formulated with the perspective of ruling the nation and not serving the citizens.
Ineffectiveness
The purpose of criminal laws is to secure the rights of the innocent and penalise evil, but at present, this system has become a tool of harassment for the common people.
Pendency of cases
According to the Economic Survey of 2018-19, there are around 3,500 crores of cases pending in the judicial system, especially in the district and subordinate courts, which directs us to the maxim “justice delayed is justice denied“.
Massive undertrials hostages/detainees
India has a vast number of undertrial prisoners. As per prison statistics from the National Crime Record Bureau (NCRB) in 2015, around 67.2% of our total prison population consists of undertrial prisoners.
Investigation
Corruption, huge workload, and accountability of police officers are some of the primary obstacles to the speedy and transparent delivery of justice.
Thus, looking at the above factors, one can safely say that the age-old criminal laws need to be revised at the earliest.
Framework of reform
The new reforms in criminal laws may look like this:
Protecting victims
There can be several steps taken to safeguard the rights of victims, namely:
Launching victim and witness protection schemes,
Use of victim impact statements,
Expanded participation of victims in criminal trials, etc.
Creating and revoking offences
An effective justice system must take new types of offences and the revocation of old offences into consideration.
For instance, criminal liability can be graded to discern the gravity of the offence committed and thus pass a judgement accordingly.
Streamlining IPC and CrPC
Offences must be classified in a way that they are beneficial for managing crime in the foreseeable future. For instance, modifications can be made in the IPC wherever several chapters are overfilled.
Curbing unprincipled criminalisation
There is a need to implement principles that provide a thorough reflection on the criminalisation of a particular act as a crime. Unprincipled criminalisation not only leads to the creation of new offences based on unscientific grounds but also causes a sense of arbitrariness in the criminal justice system.
Basic things to know while pursuing a career in Criminal Law
Whether it is initiating legal proceedings against lawbreakers, defending those accused of committing a crime, or engaging in any activity involving criminal laws, the laws related to crimes always play a pivotal role in our society and in the administration of justice.
No matter if you wish to become a criminal lawyer or enter into another area of practice, the journey to paving the way towards a successful career in law commences once an individual enters law school.
Mentioned below are a few things for a student and a lawyer to take note of to have a successful career in law related to crimes:
Top things a law student must note while studying criminal laws
As mentioned above, the journey to a successful career in law begins right when an aspiring lawyer enters law school. Below are some tips for a law student to follow for a triumphant career:
Special tips
Most of the time, students have been exposed to facets of criminal law via books, television, and movies. In India, shows like ‘Crime Patrol’ and ‘Savdhaan India’ are some of the most infamous TV shows. Such shows can be helpful to some degree, but can often be deceiving. This is why, to gain a better understanding of the real-world practice of criminal law, a law student must do the following:
Join an internship program
Law students must always take advantage of internships, summer and winter programs to gain hands-on experience in the field of criminal law.
Visiting the college library
There is a saying that goes like “books are a man’s best friend“, and indeed, a law student can absorb knowledge straight from the books their libraries have a treasure of!
Build connections
It is highly recommended that law students right from their first start networking and building connections. Websites like LinkedIn, AngelList, etc., can come in quite handy for this.
A law student can simply reach out to his/her law school alumni, seek professional help, and receive mentorship from individuals who are experts in this field via connections.
Top books to refer to for a law student
Usually, bare acts are the most preferred instrument for gaining legal knowledge in law schools. However, there are certain times when one needs an explanation or an in-depth analysis of a particular topic. Below is a list of books a law student can use to gain knowledge in the field of criminal law:
Top things a lawyer must note while studying criminal laws
Charles Dickens once stated, “If there were no bad people, there would be no good lawyers,” and the statement is as true as it can be!
A criminal lawyer deals with the law of crimes, mostly to defend and represent an accused in a lawsuit, and sometimes the state.
Below are some tips for a lawyer to follow for a triumphant legal career:
Special tips
Gain effective practical training
Criminal law is a fast-paced area of practice and thus needs proper practical training before he/she decides to work separately, i.e., without any seniors.
Be able to work under pressure
To become a flourishing criminal lawyer, it is essential that the lawyer is able to work under pressure and is able to think on his feet when in such circumstances.
Be able to act upon any given piece of information or evidence quickly
Criminal law needs a lot of research and evidence gathering; hence, one must be able to deal with information or evidence promptly.
Job opportunities for an individual studying criminal law
There are several job opportunities available to a criminal lawyer, namely:
Government advocate,
Government pleader,
Criminal law practitioner,
Lecturer, etc.
Top books to refer to for a criminal lawyer
Some of the best books on criminal law for beginners and law students are as follows:
Get a Running Start: Your Comprehensive Guide to the First Year Curriculum, 1st Edition by David Gray, Donald Gifford, Mark Graber, William Richman, David Super, Michael Van Alstine.
Top websites to refer to for anyone willing to build a career in Criminal Law
Below is a list of several websites and blogs for a law student or a lawyer or anyone who has an interest in gaining insights on law can refer to:
iPleaders blog
iPleaders, one of India’s largest blogs for anyone who has an interest in the field of law. An individual can write and submit posts for publication on any legal issue, share their legal insights, and ask for and receive answers on legal issues here.
LiveLaw
LiveLaw is a website that covers news related to Indian legalities and legalisation, law firms, and law schools, inter alia. It also publishes opinions on the latest developments in the field of law.
Bar and Bench
Bar and Bench is a widespread news and analysis portal for the legal fraternity in India. It has several posts on news information, interviews, and columns covering a lot of legal spectrums.
Indian Kanoon
Indian Kanoon is an Indian law search engine. It has been connected to all the courts and tribunals across India for delivering up-to-date judgements.
SCC Online
Their tagline incorporates “we are the industry leaders in legal research” and they are well-known for building authentic and reliable legal information.
Manupatra
Manupatra is one of the leading providers of Indian databases for online legal research. It is an amazing tool for legal research, especially for law students, legal professionals, etc.
Conclusion
As stated above, a country like India has numerous laws for the administration of justice under the criminal justice system. The criminal laws in India are quite intricately designed and are very sophisticated. Indian criminal laws have numerous laws surrounding distinct crimes and penalties. It also encompasses the procedures in which the trials in the cases should be conducted; the method of carrying out an investigation; and how to go ahead with the evidence discovered.
A strong criminal law framework is crucial for averting wrongdoers from committing a wrong and also for making the justice system uncomplicated, reasonable, and quick.
Frequently Asked Questions (FAQs)
How many types of criminal laws are currently present in India?
In India, laws are predominantly divided into three parts, namely:
The Indian Penal Code, 1860;
The Code of Criminal Procedure Code, 1973; and
The Indian Evidence Act, 1872.
Apart from these major acts, there are several other minor acts, as discussed above.
Who drafted the Indian Penal Code and when?
The Indian Penal Code was drafted in 1860 on the suggestions of the First Law Commission of India, established in 1834 under the Charter Act of 1833 under the Chairmanship of Lord Thomas Babington Macaulay. It came into effect in the early British Raj period, around 1862.
What are the most recent amends to the criminal laws?
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The Federation of Law Societies of Canada’s National Committee on Accreditation (NCA) is a standing committee. Administrators of provincial and territorial law societies, members of the practising bar, and representatives of the Council of Canadian Law Deans are among the committee’s members.
NCA assists Canada’s law societies in safeguarding the public interest by ensuring that anyone who received their legal education and training outside of Canada has the necessary knowledge to practise law in Canada. They teach people how to increase their understanding of Canadian law so that it is comparable to what they would learn in a recognised Canadian common law degree programme. The NCA does this by evaluating your academic background and work experience. The NCA then uses a single standard to identify which examinations or studies you need to take to either fill in knowledge gaps or demonstrate that you have the necessary information.
NCA Assessment
On a case-by-case basis, the team evaluates applications from legal systems that do not have a significant common law component, such as civil law. You are unlikely to be recognised for your legal education and expertise if you have little common law exposure (academic or professional).
You can get the required common law exposure by-
Enrolling in an LL.M. programme or taking individual courses or;
Becoming licenced as a lawyer, barrister, or solicitor in a common-law jurisdiction by passing substantive course work or exams or;
Becoming certified as a paralegal or notary in a common-law jurisdiction.
In each case, the Executive Director has sole discretion in determining whether some of the courses taken can meet the NCA’s standards.
If you enroll in individual courses, the NCA will reconsider your case once you have successfully completed at least four common law subjects, according to NCA policy (Assessment Reconsideration).
If you like, you can meet the remaining subject requirements by writing NCA tests rather than taking law school courses once you have the required common law exposure. The NCA’s list of subjects is as follows:
Do have your courses approved by the NCA before registering for them. Read the website for the Assistance for NCA students page.
Legal research requirement
If your credentials are evaluated after January 1, 2022, you must also complete a legal research and writing course offered by an approved Canadian common law programme or the NCA legal research and writing module offered by the Canadian Centre for Professional Legal Education (CPLED).
You can receive exposure to common law topics by taking other common law subjects like Family Law, Commercial Law, or Remedies. However, before you are offered a Certificate of Qualification, you must prove competency in the eight subjects listed above. You must either complete an approved Canadian common law curriculum or take the NCA exam to complete the five essential Canadian subjects (only after you have successfully completed at least four law school courses).
Who can apply for NCA
All internationally trained legal graduates are eligible to apply, whether you are:
A migrant to Canada with a law degree or;
A Canadian citizen who received his or her legal education outside of Canada, or;
A legal graduate considering coming to Canada.
Civil law graduate from Canada
You can apply from anywhere in the world; the assessment procedure is unaffected by citizenship, nationality, or where you live.
How to apply for NCA
Complete the online assessment application form by selecting the Apply now option, Click here to apply now and make sure all the required papers for NCA are present with you.
The form will not be processed until the payment ($450.00 CDN + taxes) is received. The online form comes with a payment module. Payment must be made with a credit card.
Required documents
You can either transmit your original or official pre-law university transcripts, or you can have your university provide the NCA official pre-law university transcripts to you (if applicable)
Formal transcripts (detailed mark sheets) for your legal education from the school that gave them. Do not share original law school transcripts or degree certificates. NCA does not accept these original documents directly from applicants and will not be held liable if they are lost or destroyed while shipping.
Attach an updated outline of your education and work experience (résumé or Curriculum vitae) with the application form.
If you are a lawyer, get a letter or certificate of good standing from the bar association or bar council provided to you (This must outline the date you were called to the bar and your status as a member in good standing.)
Documents delivery via secure sharing services
If your law school is unable to transmit formal transcripts for your legal education by mail or courier, they may send them to [email protected] using a secure document sharing service. The NCA accepts documents through the following services
National Student Clearing House: Electronic Transcript Exchange
OpenCerts™
Parchment: Digital Credential Service
PremierCert
Transcripts Network by Credentials Solutions
Documents in languages other than English or French require translation.
If any of your documents are not in English or French, they must be sent to the NCA with an exact English or French translation completed by:
a Canadian certified translator, or;
a non-certified translator, or a translator recognised outside of Canada, along with an affidavit of the translator stating the translator’s qualifications and that the translation is of the original document.
Within ten business days of receiving your completed application form and payment, the NCA will send you an email with instructions on how to utilise the NCA portal. The NCA may also request further information or documentation from you.
The NCA takes roughly six to eight weeks to process your application and email you your assessment after they have all of the required papers.
NCA Mailing Address
Documents should be addressed to:
Federation of Law Societies of Canada
c/o National Committee on Accreditation
World Exchange Plaza
1810 – 45 O’Connor St.
Ottawa, ON
K1P 1A4
Process of NCA Assessment
You send in your application together with the necessary papers and money.
Your legal education and experience are evaluated by the NCA, which compares it to the National Requirement and its Policies.
The NCA outlines the steps you must do to be eligible for law society bar admission (known as “assignments”). You may need to take NCA tests or take courses in a Canadian law school to complete your tasks. You have other options if you are dissatisfied with the assessment.
You can request a Certificate of Qualification as confirmation that you have completed your NCA tasks (either examinations or law school courses) once you have completed them.
To do so, go to your NCA portal and complete the following steps:
Choose “Manage Yourself”
Select “Request Certificate”
Fill out the form completely.
Click “Submit”
A Canadian law degree is not the same as a Certificate of Qualification. It demonstrates that you have completed the work required by the NCA. It also demonstrates that your understanding of Canadian law is comparable to that of someone who earned their law degree from a recognised Canadian law school programme.
Bar admission
You can apply to bar admission programmes in Canadian common law jurisdictions, which include all provinces and territories except Quebec, once you have received your NCA Certificate of Qualification.
The following are the law societies from which you can choose:
You can sign up for NCA tests. You have your NCA assessment and you can meet your criteria by writing NCA examinations once exam registration is available.
If NCA has notified you that you must attend a Canadian law school programme to complete your NCA requirements, or if you have not yet received your NCA evaluation, you may not register for examinations.
The NCA offers twelve exam sessions per year, but not all subjects are available in each. For further information, see their schedule.
If you choose, you can write your tests out over multiple sessions. The deadline for completing your NCA assignments will be specified in your assessment report.
Fees
The NCA operates on a cost-recovery basis, which means it modifies fees when expenses vary. The registration price for each NCA exam will be $400 CDN plus relevant taxes as of June 7, 2021 (beginning with exams in August 2021). Read their refund policy.
You must register online using the NCA Portal and pay with a credit card in Canadian dollars. If you use a foreign credit card, you are responsible for any transaction costs as well as any exchange rate fluctuations.
Language
The Federation of Law Societies of Canada provides services in both official languages of Canada, therefore you can request that your tests be written in French. To do so, submit a written request to the Examinations Department by the deadline for exam registration.
Results
Exams are graded with a pass/fail system (i.e. 50 percent is considered a pass). Each session’s results are provided roughly 10 to 12 weeks after the final exam.
Exams given by the NCA are equivalent to those given by law schools in Canada. They are open-book and based on facts. You can obtain a better notion of the exam format and content by looking at previous law school exams. Previous tests are available in the libraries of several Canadian law schools.
An NCA exam might take up to 3.5 hours to complete. If you finish early, you must remain seated for the entire 3.5 hours, with your computer locked down.
Registration and accommodations requests close at 23:00 ET
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