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Protection of registered trademarks against trademarks not registered in certain classes

By
Rachit Garg
-
0

This article has been written by Vaibhavi S U, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho. It has been edited by Ojuswi (Associate, LawSikho).

It has been published by Rachit Garg.

Introduction

A trademark is a sign which helps in differentiating the products or services of one organization from those of other organizations.

A trademark is a type of intellectual property right. Intellectual property rights allow people to retain ownership of their innovative products and creative activity. A trademark is a name, word, or sign that distinguishes one company’s goods from the goods of other companies. Marketing goods or services becomes much easier with a trademark because product recognition is assured and simplified. The owner has the right to prevent another competitor from using his trademark or sign. A trademark can be a logo, a picture mark, or a slogan.

Trademark piracy is described as the use of a trademark by unauthorised or illegal means in trading. If there is a trademark infringement, the owner of the registered trademark can take legal action, whereas the only option for an unregistered trademark is passing off.

This article discusses the usage of a registered trademark by someone, other than the proprietor, in relation to goods and services outside the scope of trademark registration. 

What does the trademark act say

The Trade Marks Act of 1999 gives a trademark proprietor an exclusive right to utilize that trademark in relation to the goods and services for which it has been registered. It protects the owner by granting them the exclusive right to use a trademark or to allow others to use it in exchange for money. It is a tool for the registered proprietor to prevent others from using his trademark in an unauthorised manner.

According to Section 28 of the Act, no trademark infringement suit can be filed by its proprietor against someone who has a registration of such trademark in a different class or for other goods/services. As a result, the question that arises is whether the proprietor of such a registered trademark can stop people who use a registered trademark without registration, in relation to goods and services outside the scope of trademark registration. Such use of the registered trademark, which is not covered by Section 28 of the Act, might be in relation to goods/services in the same class as the goods/services for which the trademark is registered, as well as goods/services in a class other than the one listed in the registration.

The common law remedy of passing off provides the answer to the question. This is due to the fact that the right of a Plaintiff in a passing off case is distinct from the statutory rights obtained through trademark registration and is directed against the defendant’s conduct that caused, is intended to cause, or is predicted to cause deception, resulting in a negative impact on the plaintiff’s goodwill. This was held in N. R. Dongre v. Whirlpool Corporation. 

It makes no difference in a passing-off action if the parties’ goods are different, their trading methods are different, or their pricing is different. In the case of Toyota Jidosha Kabushiki Kaisha v. Prius Auto Industries Ltd. & Ors, it was observed that the focus in a passing-off action is deciding whether two marks are deceptively or confusingly similar. Furthermore, if the plaintiff’s goodwill in the market is established, a simple possibility of confusion in the minds of the general public is sufficient to establish a passing-off case, and no proof of prejudice or actual injury is required. Furthermore, a passing-off case does not necessitate that the defendant and plaintiff should be in direct competition in order for the defendant’s use of the plaintiff’s mark to cause harm to the plaintiff.

Use of a registered trademark for goods or services in a different class

In various instances, the courts have often barred the utilization of a registered trademark for products unrelated to the product for which the trademark was registered by the proprietor, especially when the registered trademark is a well-known one.

The trade connection test is used to establish the possibility of confusion when an identical or deceptively similar trademark is being used for goods that are not of the same description as the goods for which the trademark is registered. However, it is important to remember that the absence of a trade connection between the two goods for which the plaintiff and defendant are using the trademark does not rule out the possibility of deception or confusion.

In Sunder Parmanand Lalwani and Ors. v. Caltex, while deciding whether there was any possibility of confusion involving Caltex watches, Caltex gasoline, and other oil products, it was held that although there wasn’t any trade connection among the parties’ goods and there was dissimilarity between the same, there was a risk of deception or confusion since anyone who saw the mark affixed to the watches would believe they came from the same place as Caltex petrol.

In the case of Bata India Ltd v. Payrelaland Co. Meerut City, the plaintiff was manufacturing shoes and the defendant was manufacturing foam and related goods. According to the Court, a passing off action arises when there is a possibility of creating a false impression regarding the product’s origin, even if the defendants do not manufacture products similar to those of the plaintiff, denying the claim that there was no possibility of deception on the buyers of foam materials. 

In the case of Mahendra & Mahendra Paper Mills Limited v. Mahindra & Mahindra Limited, refusing to accept the appellant’s argument that its products are not similar to the respondent’s products and businesses, the court held that using the words ‘Mahindra’ and ‘Mahindra & Mahindra’ in the respondent’s business for over five decades has resulted in the name acquiring distinctiveness. As a result, the general public now links the term ‘Mahindra’ with a specific level of goods and services, and any effort to use the name would give the idea that there is a relationship with the respondent’s group of entities. As a result, the appellant/defendant, which had yet to begin operations, was barred from using the names ‘Mahendra’ or ‘Mahendra & Mahendra’.

In Aktiebolaget Volvo & Ors. v. Mr. Vinod Kumar & Ors., the Delhi High Court investigated whether the plaintiff’s trademark VOLVO, which was registered for a variety of commodities including buses, cars, automobile components, and so on, could be infringed by the defendant selling ice cream under the VOLVO mark without registration. The defendants challenged the claim that the products offered under the VOLVO mark were not identical or similar to the products for which the plaintiff’s trade mark is used. Rejecting this argument, the Court stated that due to the plaintiff’s use of the mark all over the world since 1915 and in India since at least 1975, the mark has acquired significant uniqueness and repute, and so its infringement is prohibited under Sec 29(4)(c) of the Trade Mark Act.

Recently, in the case of Kaira District Cooperative Milk Producers Union Ltd. and Anr. v. Maa Tara Trading Co. and Ors., the defendants were prohibited from using the plaintiff’s AMUL mark which was a registered mark and a well-known one. The Calcutta High Court issued an interim order prohibiting the defendants from using the AMUL mark in relation to selling candles, notwithstanding the fact that they function in a different class of business.

Use of registered trademark for different goods or services in the same class

When a person uses a registered trademark with respect to goods or services in the same class as those for which the trademark has been registered, the trademark proprietor has a passing-off action against the person who uses the same trademark with respect to different goods or services in the same class. Furthermore, the proprietor might argue that the registered trademark is well-known and should be protected across all goods/services and classes.

In Corn Products Refining Company v. Shangrila Food Products Limited, the Supreme Court stated that when competing marks are used in relation to goods of a different description, the trade connection is utilised to determine the possibility of deception or misunderstanding. In this matter, the appellant had registered in Class 30 for the mark ‘Glucovita’ for dextrose or glucose powder as well as babies’ food and objected to the respondent’s request to register ‘Gluvita’ in Class 30 for biscuits. The appellant’s trademark had earned a reputation among the public, and the respondent’s proposed mark was likely to induce confusion or deceit, according to the Supreme Court.

In Nandhini Deluxe v. Karnataka Co­operative Milk Producers Federation Limited, the appellant sought registration of the trademark ‘Nandhini’ for goods such as meat, fish, poultry, and hen, as well as other food articles, the respondent used its registered trademark ‘Nandhini’ for milk and milk products. It was held that, despite both marks being in the same class, 29 and 30, monopoly cannot be enjoyed over the entire class of goods because the respondent does not intend to manufacture the same products as the appellant does. Consequently, the appellant has been granted the right to register the mark “Nandhini” for any of the goods listed in classes 29 and 30, excluding those covered by the respondent’s trademark.

Conclusion

There is no trademark infringement when a registered trademark is used in circumstances beyond the scope of registration, i.e. when it is used in relation to goods and services other than those covered by the registration. As a result, a trademark proprietor cannot prohibit anyone from using a trademark registered by him for specific goods/services in relation to other goods/services through a suit for trademark infringement. It is important to note that the proprietor of a registered trademark does not acquire monopoly rights over the entire class of goods simply by registering their mark for goods or products in a category that falls under one class. Therefore, a mark that is identical or similar to a registered trademark may be used on registered goods/services that belong to the same class as the registered trademark, since granting the registered proprietor a monopoly over all products and services in that class would result in trademark trafficking, which does not reflect the purpose or object of the Trade Marks Act.

References

  1. https://www.wipo.int/trademarks/en/
  2. https://www.mondaq.com/india/trademark/127680/trademarks-law-in-india-everything-you-must-know
  3. https://cleartax.in/s/trademark-infringement-india
  4. https://www.mondaq.com/india/trademark/881668/similar-trademark-issued-for-different-items-does-not-amount-to-breach-of-law

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Section 7 of Hindu Marriage Act

By
Rachit Garg
-
0

This article is written by Gautam Chaudhary, a law student at Chander Prabhu Jain College of Higher Studies and School of Law, GGSIPU. The present article talks about the law relating to essential ceremonies of marriage as provided by Section 7 of the Hindu Marriage Act, 1955. 

It has been published by Rachit Garg.

Introduction 

Marriage is said to be the union of two adults who come together with their families to form a union and, as a result, give an establishment to matrimony. In Indian society, this union is termed a ‘holy union’ because the people believe that this particular union is solemnised in the presence of the Gods who are summoned to the marriage through the recital of ‘mantras’. Upon arrival, they bless the marriage to be healthy and last till eternity. However, such unions are said to be complete when they are solemnised through certain traditional or customary ceremonies.

These ceremonies derive the force for their existence from the oldest spiritual texts of Hinduism, i.e., the Vedas. They are the oldest spiritual texts which lay down the rules about marriage in the Hindu religion, which also act as a direct source for contemporary Hindu marriage laws, wherein they provide that marriage under Hindu law has its own primary basis to hold on to. These are known as essential ceremonies and rituals for a valid and complete Hindu marriage. These ceremonies were essential and of paramount importance to solemnising a marriage under the Hindu religion to be considered done in the eyes of God. The ceremonies under Hindu law act as tools for the valid solemnization of Hindu marriage, and without their presence, a holy solemnization of marriage is not considered valid. Section 7 of the Hindu Marriage Act, 1955, talks about the ceremonies of a Hindu marriage. The present article elucidates the provisions and amendments given under the HMA. 

The ancient concept of Hindu marriages

The old Hindu marriage in ancient India was guided by the old manuscript written by the sages, i.e., Manusmriti. Manusmriti provided the mandatory procedures, ceremonies, and forms of marriage to be performed in society. People used to solemnise marriages under these manuscripts only. Apart from the spiritual aspect, the marriages of ancient times were rigidly patriarchal since at that time only a man had a say in choosing his bride as per his choice whereas the girl was treated as a mere property upon which any man could claim his right for which various tournaments used to happen where the one who used to win the match was considered and chose to be a suitable husband for her. In ancient times, women did not have a say in their marriages. In ancient India, marriage was also endogamous, i.e., marrying only within the caste or social group, which was solemnized in furtherance of their traditions and to maintain the status of the group. This feature of marriage was also coupled with arranged marriages, wherein the family of the parties to the marriage had the authority to arrange a suitable bride or bridegroom for others. This practice was considered to be the utmost ‘sanskara’ to follow in the Hindu religion. 

Forms of marriage in ancient India

In ancient India, there were various forms of marriage too, which were considered valid according to the Hindu religion. They were:

Brahma marriage

This form of marriage was considered to be above divine in nature because it showcased purity at the highest level where all religious activities took place. In this form of marriage, the father of the bride used to give her daughter, clothed with jewellery, to a man of good character who knew the Vedas and was of good family background.

Daiva marriage

The bride in this form of marriage was offered as ‘Dakshana’ only to a priest at the time of marriage. No specific qualification like good character and knowing Vedas was required in this form of marriage.

Arsha marriage 

This form of marriage used to be completed when the father of the bride gave his daughter and, in exchange, received cattle or cows from the bridegroom. This practice was in place to perform and fulfil the sacred rule of marriage at that time. 

Prajapatya marriage

Prajapatya’s form of marriage was different from the above-mentioned marriages since in this form of marriage the father of the bride used to worship the bridegroom and gave his daughter by saying “may you both together fulfil duties and responsibilities”. This was the only marriage ceremony that had to be performed at the time of marriage to have a valid effect.  

Section 7 of Hindu Marriage Act

Section 7 of the HMA Act, 1955 says that there must be the performance of some spiritual ceremonies at the time of marriage. The section makes such performance mandatory for giving the status of husband and wife to the parties to a marriage in the eyes of the law. 

Sub-section 1 of Section 7 states that at the time of marriage solemnization, there may be the performance of some customary rites and ceremonies of one of the parties. Upon the bare reading of the said Section, it can be comprehended that at the time of marriage, the husband or wife may perform some customary rites or ceremonies to render the solemnised marriage valid. It is to be noted that the present sub-section does not provide the kinds of ceremonies which must be performed at the time of marriage because of the multiple diversifying nature of Indian society. Therefore, the legislation made the texts of the sub-section discretionary in nature for parties to the marriage, where they may perform any ceremonies as per their traditions and customs. The use of the term “either of the parties thereto” makes clear that at the time of marriage, liberty is given to both parties or either one of them to perform the ceremonies. 

Moving on to sub-section 2 of the present Section, sub-section 2 mainly lays out the procedure as to how ‘Saptapadi’ is completed. It is one of the holy ceremonies of marriage. The said sub-section states that where the performing ceremonies include Saptapadi, which means taking seven rounds in front of the holy fire, i.e., ‘Agni’ in the mandap, upon the completion of the seventh round, the marriage is said to be completed, which is of binding nature and is said to be a valid marriage. The term ‘binding’ mentioned in the present sub-section means that the wife and the husband are tied to each other and, in law, they belong to each other now, where neither of the parties can allege in the future that the other party is not his/her wife or husband and neither party can go out of this lawful tie according to his sole discretion and will. The only way to get out of this tie would be through a divorce. 

State amendments to Section 7 of Hindu Marriage Act

The present Section was amended by the Madras Amendment Act, 1967, which provides provisions regarding ‘Suyamariyathai’ and ‘Seerthiruththa’ marriages that have existed in the state for over half a century. For this, Section 7-A was added, which provides the additional ceremonies to be performed at the time of marriage, which are:

  1. Each party may communicate with the other in the language understood by the other and convey that the party takes the opposite party to be their husband or wife. 
  2. Each party may put a ring on the finger of another party or put a garland or ‘varmala’  on the neck of the bride or groom. 
  3. The marriage may be solemnised by the tying of the thali, i.e., a sacred thread of gold worn by the married wife after marriage.

The above-mentioned Madras state amendment to the Hindu Marriage Act, 1955 only provides provisions for two marriages, namely, Suyamariyathai and Seerthiruththa. It provides that the marriage can be solemnised in the absence of a priest. If the priest is not present, then the marriage can be validly solemnized in front of friends, relatives, family, and other people, but in the said situation, the parties to the marriage must communicate with each other, admitting to taking him/her as husband/wife, putting the ring on the other party’s finger, and tying the thali, i.e., the sacred thread of gold, worn by the married wife after marriage.

The Hon’ble Supreme Court in S. Nagalingam vs. Sivagami, (2001) also held that Section 7-A will apply to those marriages where the parties to the marriage, i.e., bride and bridegroom, solemnise a marriage in the presence of parents, family, and friends. In order to solemnize a valid marriage under this special provision, the presence of a priest is not necessary. Furthermore, parties are also at full liberty to enter into a marriage where their parents,  family, and friends are present at the time of marriage, but in such marriages, the bride and the bridegroom should communicate or declare to the other that he/she takes the other to be his lawful husband and wife. This requirement must also be coupled with the tying of the thali or putting a ring upon any finger of the other. After all this, a valid marriage shall be solemnised in the eyes of the law. 

Different ceremonies accepted under Section 7 of Hindu Marriage Act

At the outset, in Smt. Bibbe vs. Smt. Ram Kali and Ors, (1982), the Hon’ble Allahabad High Court said that the ceremonies required to be performed at the time of marriage are not exclusively fixed. Moreover, if in case the ceremonies are performed at a certain marriage, it shall not be taken as the only ceremony or bunch of ceremonies prescribed by law. They vary according to the customs and traditions of the parties to the marriage. 

In Ram Chandra Bhagat vs. the State of Jharkhand (2010), it was observed by the Hon’ble Supreme Court that an inter-caste marriage may be solemnised either following the customs and ceremonies of the boy’s caste or the girl’s caste. 

The object of highlighting the above-stated judgments is to understand that in Hindu law, the solemnization of marriage is totally dependent on the customs and rites of the parties to the marriage. This is also provided in Section 7(1) of the Hindu Marriage Act, 1955, that the marriage may be solemnised either in accordance with ceremonies existing in customs or rituals of either party. Thus, it can be construed that there cannot be a straight jacket formula as regards what ceremonies are accepted under Section 7 because India is a place of multiple diversities and every community has its own rituals and customs to follow. 

Although for a basic and highlighted understanding, the following are the ceremonies that are accepted for a valid solemnization of marriage:

Kanyadaan

The present term is made up of the union of two other terms, i.e., ‘kanyaa’ and ‘daan’. The former means a ‘girl’ and the latter means donation or giving away. At the time of marriage, the father of the bride performs this ceremony by giving his daughter to the groom along with the responsibility to protect, preserve, and nurture her. The present ceremony may be essential or mandatory for a valid marriage. 

Sagai

Under the Hindu religion, the festivities of marriage begin on the day of ‘sagai’. Sagai is the ceremony in which the groom and the bride present rings to each other, and by doing so, they take a step ahead towards their holy union. A ring ceremony takes place in India just to embark or lock in the joyful union of the groom, bride, and their families. 

Saptapadi

Saptapadi, which generally means taking seven steps around the holy fire under the mandap at the time of marriage, is a fundamental and common ceremony performed among various Hindu communities. Section 7(2) of the Hindu Marriage Act, 1955, gives out the general provision for Saptapadi, wherein it states that where rites and ceremonies include ‘saptapadi’ as a ceremony, then the marriage will be considered complete and valid upon the completion of the seventh round around the holy fire. 

Homa

A Hindu marriage also includes the ceremony of ‘homa’ or in the spiritual term ‘vivah homa’ wherein, after the Kanyadaan, a sacred fire is lit in the havan kund and the chanting of mantras by the priest begins to worship the god of fire, i.e., ‘Agnidevta’ and to invite ‘Vishnu’ to the marriage to mark it as holy. In this ceremony, the bride and groom repeat the mantras of ‘santani’ for the wellness of children, ‘sampatti’ for good wealth and financial status, and ‘deergharogya’ for a happy and healthy life.

Pani Grahan

In Pani Grahan, the bridegroom holds the right hand of the bride and faces the west, while the bride faces the east side. After taking such a position, the bridegroom starts reciting the mantras given by the priest. The mantras involve promises of happiness, a long-lasting relationship between the parties to the marriage, and promises regarding household responsibility.   

Landmark case laws

  1. In A. Asuvathaman vs. Union of India (2015), the Madras High Court in the year 2015 upheld the validity of Section 7-A of HMA. In the present case, the petitioner challenged the validity of the state’s amendment, terming it to be ultra-vires to Section 7 and completely against the principles of the Hindu religion. He also further submitted that the amendment has proved to be in violation of Article 14 of the Indian Constitution. The Court dismissed the petition, saying the amendment is just regarding two marriages, i.e., Suyamariyathai and Seerthiruththa, and thus it is not discriminatory in nature. The Court further held that there exists a presumption in favour of the constitutionality of the act unless the petitioner proves any grounds that are proven to be against any principle of the Constitution.  
  2. In Bhaurao Shankar Lokhande vs. The State of Maharashtra (1965), the Hon’ble Supreme Court held that marriage is not said to be in existence if it is not celebrated or performed with the necessary customary ceremonies. A marriage shall be solemnized in the eyes of the law when it has been conducted while following the ceremonies of either of the parties. Further, the Court also held that merely after following certain ceremonies as per their will, the parties cannot be said to be married because such a ceremony will not be recognized by law and customs. What has to be noted is that the ceremonies must be conducted in practice according to the parties’ customs and traditions. 
  3. In Sumit Subhash Agarwal vs. Kamalesh Lalita Prasad Gupta (2018), the Hon’ble Bombay High Court held that taking pheras around a bunch of agarbattis is considered Saptapadi and so constitutes a valid marriage. 
  4. In Shri. Nitin S/O. Omprakash vs. Smt. Rekha W/O. Nitin Agrawal (2017), the Hon’ble Bombay High Court observed that having a physical relationship along with the application of sindoor on a woman’s forehead and tying of mangalsutra does not constitute a valid marriage.
  5. In Surjit Kaur vs. Garja Singh (1993), the Hon’ble Supreme Court held that living together for a long time without any performance of holy ceremonies would not constitute a valid marriage.
  6. In S. Nagalingam vs. Sivagami (2001), the Hon’ble Supreme Court held that the ceremony of Saptapadi is essential where the parties admit it to be essential. And where Saptapadi is not performed but other ceremonies have been performed according to the custom of either party, a valid marriage has been solemnized. 

Conclusion

In order to solemnise a valid marriage in the eyes of the law, one must perform not all but some of the ceremonies. The Hindu Marriage Act, 1955 gives liberty to either of the parties to perform the necessary ceremonies to give marriage a valid effect. Further, the law does not provide or have a straight jacket formula as to what these necessary ceremonies are, the reason being the diverse nature of  Indian society. What is necessary is that the ceremony, either on the bride’s side or on the groom’s, must be necessary and of the utmost importance to solemnize or complete a marriage. The same was said by the Apex court in Surjit Kaur vs. Garja Singh (1993), which held that living together for a long time without any performance of holy ceremonies would not constitute a valid marriage.  

Frequently Asked Questions (FAQs) 

Would non-performance of the ceremonies render the marriage invalid?

The non-performance of essential ceremonies will completely render the marriage invalid since, according to the Hindu religion, the performance of ceremonies like Saptapadi is necessary to solemnize a valid marriage. 

Is Section 7 mandatory in nature?

Section 7 of the HMA holds mandatory force in terms of a valid marriage. There is no presence of discretion as to whether to perform ceremonies or not.

Why was Section 7-A added to the Hindu Marriage Act, 1955 by the Madras government?

Section 7-A was added by the state government through an amendment just to specially provide provisions for marriages, i.e., Suyamariyathai and Seerthiruththa. The said provisions were introduced just to give a legal framework to these marriages, which had been in practice for a long time in the state.

References 

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

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Practical aspects of data protection in India

By
Sneha Mahawar
-
0
data protection

This article is written by Abhishek Verma. This article has been edited by Ojuswi (Associate, Lawsikho). 

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

“Data is the new oil” phrase was coined in 2006 by Clive Humby, a British mathematician and data science entrepreneur. In this digital era, data is the most valuable asset. Data is information whether it is qualitative or quantitative, stored in electronic or physical form. Data plays a vital role in decision-making in almost every sector and at every level when gathered completely and accurately, and corroborated with other relevant data in a timely manner. When properly refined, usable data quickly becomes a decision-making tool allowing companies to react to market forces and enabling them to be proactive and intentional in their decision-making. 

As it has been seen, the government used to conduct various surveys to collect data to further formulate policies and take help in important decision-making at various levels. In the same way in the current era, corporates take help from the data collected through tracking the activities of the general public regarding the goods and services they are looking for or what kind of product they might be interested in, upon analyzing certain factors such as their buying habits, age, sex, culture, weather conditions, etc. to make important decisions in marketing their products and services to their relevant target customers.

Organisations need data to have a better understanding of the market, purchasing patterns, the budget of people, and demand for products based on geography, age, and other factors. And now the question arises of what kind of information they look for and how is that information processed and forwarded to those organisations.

Every time we search for anything or browse any website, we become a source of data for companies. Companies not only track our online activities but also sell that data to other relevant companies so that those companies could take the help of those leads and try to convert them into sales.

And certainly, there are many instances where the storage or usage of data becomes immoral or violates the privacy of people. So there arises the need to regulate the usage of data by legislating certain laws or regulations to prevent the violation of the privacy of people.

In this article, we will be focussing on the current status/position of data protection in India by studying and analysing the relevant provisions that regulate the collection, use and disclosure of data and the case laws dealing with the illegal use of data. 

Data protection 

Data protection is the process of safeguarding or protecting data from any kind of unauthorised or illegal use. In other words, data protection is the protection from any sort of use of personal data without the permission of the concerned person whose data is being used, except or otherwise the said data is being used by any competent authority and without any violation of the rights provided under the law. The data protection regulations try to balance the usage of data to be used as a resource and the privacy of individuals.

Concept of data : Indian perspective

Data has been defined differently in different acts, and among such definitions, some are outlined hereunder:

According to Section 2(1)(o) of the Information Technology Act, 2000 (the “IT Act”) “data” means “a formalised representation of concepts, information, facts, knowledge, or instructions that are being processed, is being processed or has been processed in a computer system or computer network, and maybe in any form (including computer printouts, magnetic or optical storage media, punched cards, punched tapes), or stored internally in the memory of the computer.” 

The electronic consent framework issued by the Digital Locker Authority defines ‘data’ to mean “Any electronic information stored by a public or private service provider (such as a government service department, a bank, or a document repository, for example). This could apply to both static and transactional documents. Data, on the other hand, is not limited to electronic information; it also includes information saved in physical forms, such as on a sheet of paper.”

These are not the only definitions that define the scope of data under the Indian legal system, data has been defined in other regulations also which give the same meaning, in other words, they may slightly differ in scope. 

Although India had not been vigilant specifically regarding data protection in the past years, through some landmark judicial pronouncements on the ‘right to privacy’, we can witness some developments in Data Protection in India as privacy is the key element in the concept of ‘Data Protection’.

Judicial pronouncements on privacy : an intrinsic part of data protection

M.P. Sharma and Ors. v. Satish Chandra, District Magistrate, Delhi, and Ors.

In this case, for the very first time, the Hon’ble Supreme Court of India took up the question:

  • Whether the ‘Right to Privacy’ is a fundamental right or not? 
  • Whether a warrant issued under Section 94 and 96(1) of the Code of Criminal Procedure for search and seizure violates the right to privacy of a person.

It was held that:

  • The power of search and seizure is necessary to protect social security and is not in contravention of any of the provisions of the constitution of India. 
  • Also, the right to privacy was not mentioned as a fundamental right by the constitution-makers.

Kharak Singh v. State of Uttar Pradesh and Ors.

In this case, the main questions that arose were: 

  • Whether the right to privacy is inclusive of Article 21?
  • Whether the domiciliary visit at night for surveillance against the accused violates Articles 21 and 19(1)(d) of the Indian Constitution?
  • Was the act of maintaining history sheets of the previously accused person and keeping track of their movements violative of Article 19(1)(d) and 21 of the Indian Constitution?

It was held that:

  • Although in the view of the majority of judges, Article 21 of the Constitution of India does not include any provision for privacy and the right to privacy cannot be considered a fundamental right. 
  • Regulation 236(b) of the UP Police Regulations that authorises Domiciliary visits by the state is unconstitutional as it violates Article 21 of the Indian Constitution.  
  • The court determined that keeping a close eye on a suspect and secretly filming their activities did not obstruct their physical movement and that a psychological barrier to action was not protected under Article 19(1)(d).

Furthermore, it did not violate the suspect’s ‘personal liberty’ as defined by Article 21.

Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors.

This case was a landmark judgment by the Hon’ble Supreme Court of India as in this case, it was held that the ‘right to privacy’ is protected or enshrined under Articles 14, 19, and 21 of the Indian Constitution. This case overruled M.P. Sharma and Kharak Singh’s judgment.  

The ‘Aadhar Card Scheme’ was challenged in this case because it violated citizens’ right to privacy by collecting and utilising their biometric information for other purposes. The petitioner stated that the right to privacy is a basic right that should be protected under the Indian Constitution Article 21. In response, the respondents argued that the Constitution merely recognizes personal liberty and that citizens have a limited right to privacy.

The Constitutional bench of nine judges was formed to determine the issue unanimously. The Supreme Court ruled that the right to privacy is integral to the right to life and personal liberty guaranteed by Article 21. It is also a part of the rights protected by Part III of the Indian Constitution. It was also stated that the state has an obligation to preserve the privacy of its residents. As a result, the ‘Aadhar Card Scheme’ was found to have violated residents’ right to privacy.

Citizens can now seek court remedies if their data privacy rights are violated, thanks to this judgment of the Hon’ble Supreme Court. This decision also has ramifications for Indian tech businesses’ norms and laws.

In this light, it is essential to look at regulations that deal with data protection laws in India. The following section highlights a few of these legislations.

Regulations in India for data protection 

Although, there are no such overarching laws that regulate the collection and usage of personal data. But there are certain sections in various Acts that somehow, directly or indirectly, regulate the collection and usage of data.

Among those, we will discuss some hereunder:

Personal Data Protection Bill, 2019 (“PDP Bill”)

This bill was drafted by a panel led by BN Srikrishna, a retired Supreme Court Judge, and was reviewed by a Joint Parliamentary Committee that has already submitted its final recommendation. 

The bill has been deliberated for over two years now.  A total of 188 amendments have been recommended out of which 91 amendments are significant, while others are subject to some minor editing of legal nature in different sections. 

The bill will broaden the scope by providing a comprehensive data protection framework that will apply to all forms of personal data processing, as well as processing activities carried out by both the government and private bodies, including corporations.

Applicability of the PDP Bill

The PDP Bill applies to the processing of personal data by:

(i) The Government;

(ii) Companies Incorporated in India;

(iii) Foreign Companies dealing with the personal data of individuals in India.

This bill not only regulates the data collection and usage of internet-based companies but also brick-and-mortar companies.

The nature of data is regulated by the categories of “data” :

Personal data 

According to the bill, personal data means “data relating to a natural person about an attribute, characteristic, trait, or any other factor that aids in the identification of that person.” The bill also establishes a distinction between Critical and Sensitive Personal Data.

Sensitive personal data 

It includes biometric data, financial data, political affiliations, health data, sexual orientation, transgender status, caste or tribe, religious and sex life, etc.

Critical personal data 

It means any such data which will be notified by the Central Government as critical personal data.

Anonymized data 

It means data that has undergone the process of anonymization.

Offences and punishments under the PDP Bill 

  1. Transferring or processing personal data in violation of the Bill shall be punishable with a fine of Fifteen Crore Rupees or four percent of the annual turnover of the fiduciary, whichever is higher, and;
  2. Failure to undertake a data audit will result in a fine of Rupees. 5 crores or 2% of the fiduciary’s annual turnover, whichever is higher.
  3. Re-identification and processing of de-identified personal data without permission or consent are punishable with an imprisonment of a term which may extend to three years, or fine, or both.

The PDP Bill sets up a Data Protection Authority which may;

  1. Take appropriate steps to protect the interests of individuals;
  2. Prevent misuse of personal data, and;
  3. Ensure compliance with the Bill.

According to the bill, the Data Protection Authority will be composed of a chairperson and six members with experience of at least ten years in the fields of data protection and information technology. Appeal from the orders of the Authority can be filed to an Appellate Tribunal and appeals from the Tribunal will go directly to the Supreme Court.

The Information Technology Act, 2000

The Information Technology Act was enacted to regulate electronic commerce and transactions and to prevent cyber crimes by penalising them. Provisions under the IT Act that deals with the protection of data are mentioned hereunder: 

Section 43. Penalty and compensation for damage to the computer, computer system, etc.

According to this section, if any person uses a computer or computer network without taking the consent of the owner to cause harm then he shall be liable to pay damages to the person so affected by the way of compensation.

Section 43A. Compensation for failure to protect data

This section outlines the obligation upon the body corporates that fail to maintain reasonable security practices and procedures, where they are dealing with or possessing any sensitive personal data or information and thereby causes any kind of wrongful loss or wrongful gain to any person, then such body corporate shall be liable to pay compensation to the person who has incurred the loss.  

Section 66C. Punishment for identity theft

This section states the punishment where whoever, dishonestly or fraudulently makes use of the password, electronic signature, or any other unique identification feature of any other person, shall be punished either with imprisonment for a term up to three years or a fine up to rupees one lakh or both. 

Section 66E. Punishment for violation of privacy

This section provides for the punishment stating that whoever, knowingly or intentionally captures, transmits, or publishes a photograph of a person’s private area without their consent, in circumstances that violate that person’s privacy, is punishable by imprisonment for up to three years or a fine of up to two lakh rupees, or both.

Section 72. Penalty for breach of confidentiality and privacy

This section provides that if any person whoever has secured access to any information or any other confidential record without the consent of the person concerned and discloses the same to any other person then he shall be punished with imprisonment for a term up to two years, or with fine up to INR 1,00,000 (Rupees One Lakh), or with both.

Section 72A. Punishment for disclosure of information in breach of lawful contract

This section provides that if any person discloses any kind of personal or confidential information that he has accessed while providing services under the terms of a lawful contract without the permission of the concerned person then he shall be punished with imprisonment which may extend to three years, or with fine which may extend to rupees five lakh, or with both.

Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011 

Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011 governs and regulates the use of Sensitive Personal data and information and this act applies to every corporate body or any other individual dealing with such sensitive personal data or information. 

Rule 4. Body corporate to provide policy for privacy and disclosure of information

This rule makes it mandatory for the body corporates who are collecting personal information from its users to publish the privacy policy containing all the required provisions on their websites ensuring that it is clear and easily accessible.  

Rule 5. Collection of information

This rule states that a body corporate shall collect any sensitive information only if it is necessary and for a lawful purpose and that too upon approval from the concerned person. Also, the collected information shall not be used for any other purpose. 

Rule 6. Disclosure of information

This rule prohibits the body corporate to disclose any personal or sensitive information collected from a person to any third person without prior permission of the concerned person except any government entity which is working under a lawful act. 

Indian Telegraph Act, 1885

The Indian Telegraph Act, 1885 governs the use of wired and wireless telegraphy, telephones, and other digital data communications. Provisions dealing with the privacy of data are:

Section 24. Unlawfully attempting to learn the contents of messages

This section states that if any person unlawfully learns the contents of any message he may be punished with imprisonment for a term up to one year in addition to the fine mentioned under section 23 of the Act. 

Section 25. Intentionally damaging or tampering with telegraphs

This section is a provision for punishment to the person whoever damages or tampers any part used in a telegraph to prevent the smooth delivery of any message or to commit any other mischief shall be punished with imprisonment for a term which may extend to three years, or with a fine or with both.

Section 26. Telegraph officer or other official making away with or altering, or unlawfully intercepting or disclosing, messages, or divulging purport of signals

According to this section, if any telegraph officer or any person who is not a telegraph officer but has official responsibilities in any office that is utilised as a telegraph office willfully conceals, alters, destroys, or omits to transmit any message or part thereof other than acting in obedience to a lawful order of a government shall be punished by imprisonment for a term of up to three years, or by a fine, or both.

Section 30. Retaining a message delivered by mistake

This section provides that if a person fraudulently retains, willfully conceals, or detains a message that should have been delivered to another person he shall be punished with imprisonment for a term up to two years, a fine, or both.

This list of above-enumerated legislations is not exhaustive, there are other laws also that somehow, directly or indirectly, regulate the collection and usage of data.

Conclusion

Data is used by almost every entity and it has become an essential tool to take important business decisions, when they use the data of any third person they have an obligation not to make any inappropriate or illegal, or immoral use of that data. Although, currently in India, there is no such specific regulation for Personal Data Protection as General Data Protection Regulations (GDPR) in the European Union. But a panel has drafted and proposed a Personal Data Protection Bill in 2019 which was reviewed by a Joint Parliamentary Committee that has already submitted its final recommendations and the bill is now subject to some amendments. Apart from a specific Act for the protection of personal data, there are many other laws that directly or indirectly, regulate the collection, usage and disclosure of personal data. However, there still is a dire need for proper legislation that matches up to the growing pace of requirements in the area of data protection.

References 

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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What is an independent judiciary

By
Sneha Mahawar
-
0
Judiciary

This article has been written by Ishani Samajpati, pursuing B.A. LL.B. (Hons) under the University of Calcutta. The article offers a detailed discussion on the concept of an independent judiciary in general. Further, it is also discussed whether or not the Indian judiciary is truly independent. In short, the article exhaustively covers both the general and Indian perspectives of an independent judiciary.

This article has been published by Sneha Mahawar.

Introduction

“There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured.” – Dr B.R. Ambedkar

Judiciary is the system of courts of law that helps to ensure the supremacy of laws in any nation. It plays a crucial role in the functioning of democracy. 

Under the doctrine of separation of powers, the judiciary is one of the principal organs of the state along with the executive and legislature. While the legislature and executive is concerned with making the law and executing them respectively, the judiciary supervises whether the law is properly followed and also interprets and applies the laws in various legal issues. The separation of power further dictates that the judiciary should act independently without any outside influences.

An independent judiciary is extremely important for a democracy to prosper. Hence, it is expected that the judiciary should remain impartial and neutral. However, due to some external factors and pressure from various influential quarters, the independence of the judiciary is often compromised. Various features of an independent judiciary, why it is necessary and most importantly why the independence of the judiciary often faces uncertainty as well as the status of the independent judiciary in an Indian perspective are further explored in the article.

Concept of an independent judiciary

An independent judiciary implies that the executive and legislature should not interfere in the work of the judiciary. The judiciary is expected to be free from all the influences and interests of the government and the ruling party and should not act on its behalf. The judges, in an independent judiciary, should have the freedom to exercise the judicial powers conferred upon them without any influence, pressure or fear. The impartial judges play the most vital role to ensure the independence of the judiciary and act as a foundation of a fair and impartial system of courts.

In other words, an independent judiciary is a political principle that states that the judiciary should interpret the law and the Constitution of the respective country while being completely free from the influence of other branches of government, political parties or public opinion or any partisan interests.

The separation of powers is a fundamental guarantee of the independence of the judiciary. In the decision-making process, judges should have the freedom to decide cases impartially, in accordance with their interpretation of laws and facts. They should be able to act without any restriction, improper influence, fear or favour.

A classic example in this regard can be a landmark judgment delivered by the US Supreme Court in the case of United States v. Nixon (1974), a unanimous decision was passed against President Richard Nixon, asking him to submit the Watergate Trial Tapes, which upheld the principle of Rule of Law and subsequently reminded that even the US President is not above the law.

Similarly, in an Indian case of State Of U.P v. Raj Narain & Ors (1975), the Allahabad High Court declared the then Prime Minister of India Indira Gandhi guilty of electoral malpractices and therefore ordered to set aside the election.

The system of separation of powers has been adopted by the USA to ensure an independent judiciary. But in cases of constitutional systems based on Parliamentary sovereignty such as in the UK or India, the independence of the judiciary is mostly ensured by means of judicial supremacy. 

In India, to ensure the independence of the judiciary, judges in the High Courts, as well as the Supreme Court, are appointed with very little interference from other branches of the government. Once appointed, it is also very difficult to remove a judge.

An independent judiciary is the sine qua non to ensure the vibrant democratic spirit of any nation.

Types of judicial independence

Judicial independence is mainly of two types. They are i) institutional or functional independence and ii) decisional independence.  

Institutional or functional judicial independence

Institutional or functional judicial independence refers to the fact that the other organs of the government should not interfere in the judiciary by any means. It is solely based on the degree of separation of power. The judiciary is free to decide the appointments, transfers and salaries and amenities provided to the judicial officer or the judges. It is the independence of the judiciary from the other institutions or organs of the State.

Institutional or functional judicial independence includes protection from interference and freedom from influences of powerful individuals, groups and lobbies. Institutional or functional independence of the judiciary from the executive and the legislature is fundamental to the idea of rule of law.

Decisional judicial independence

Decisional judicial independence refers to the idea that a judicial officer should be impartial, neutral and free from prejudices and any biases while deciding any particular case. The independence of an individual judge is termed decisional judicial independence.

It also includes the fact that a judge should decide a case based on the concerning facts and laws only without being affected by the opinions of the media, politics, pressure or interference or influence from any quarter and fear of any penalty in their own careers.

Decisional judicial independence is again of two types. They are:

i) Substantive judicial independence which means that while deciding a case and exercising judicial powers conferred upon them, the individual judges are not subordinate to any other authority but are the law themselves.

ii) Personal judicial independence refers to the fact that judges should be impartial or neutral without any influence or fear and they should decide the case based on the facts of the case and existing laws. 

Historical background of an independent judiciary

The concept of judicial independence has stemmed from the subject matter of the doctrine of “Separation of Powers”, coined by the 18th-century French philosopher Montesquieu. However, the concept of an independent judiciary was formally adopted by England in the Act of Settlement, 1701, though the concept of an independent judiciary took time to flourish. 

Before the enactment of the Act of Settlement, 1701, the Judges used to hold the position as per the decision of the ruler. Like any other civil servant, the judges could also be dismissed by the Crown when decided. Thus, the judges had to act subordinately to the executive and legislature. This led the judges to favour the interests of the royal family and other influential persons. The judicial independence was secured by the Act which formally recognised the principles of security of judicial tenure, formal mechanisms for the impeachment of a judge etc.  Because of the Act of Settlement, 1701, it has been possible to impeach a senior judge from office through an official address to the Queen after agreement by both Houses of Parliament.

Other common law countries such as Canada and Australia also adopted the British model of an independent judiciary. 

The Act of Settlement was used as a foundation by the Founding Fathers of the Constitution of the United States to formulate Article III of the US Constitution, which acts as a base of American judicial independence.

Independent judiciary in an Indian perspective

After post-independence, the concept of an independent judiciary has been enshrined in the Constitution of India itself. The idea of independence of the judiciary was adopted from the laws of the United States of America. However, from ancient times, India had a well-maintained judicial system free from any external influences.

According to Justice S. S. Dhavan of Allahabad High Court in the essay “Judicial System in Ancient India”, “India has the oldest judiciary in the world. No other judicial system has a more ancient or exalted pedigree.” 

Smritis in Ancient India stressed the need for an effective judicial system to carry out justice according to dharma. It also emphasised that the primary duty of the King was to administer the rule of law and protect the people and punish the wrongdoer. Apart from that, the Arthashastra by Kautilya also talked about the principles of judicial independence. 

Ancient jurists like Manu, Yajnavalkya, Katyayana, Brihaspati etc, and later, commentators like Vachaspati Misra also stressed the fact that the judiciary should be independent and judges should solely decide a case based on facts and laws.

International instruments to secure the independence of a judiciary

Maintaining an independent judiciary has been the key focus of international instruments. Some of the most prominent international instruments are as follows:

UN Basic Principles on the Independence of the Judiciary (1985)

The UN Basic Principles on the Independence of the Judiciary was adopted on 6th September 1985 by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held in Milan, Italy. 

The idea behind the adoption of the principles was to provide a framework to administer an independent judiciary in every country and enable a judge to do his duty impartially by following the principles.

The principles emphasised the selection, appointment, conduct and training of the judges since they play the most important role in running the judiciary.

Following are the basic principles which were formulated to guide the governments of the member states to secure and promote an independent judiciary:

Independence of a judiciary

  1. The State should guarantee the independence of the judiciary by enshrining the following in its Constitution and the laws of that country. The duty of the government is to ensure an independent judiciary by removing all interference from the organs of the government.
  2. On the other hand, the judiciary should observe all the cases based on facts and the concerning laws relating to the cases without being influenced. The jurisdiction of the judiciary is extended up to all judicial matters and matters contain serious questions of law.
  3. There should not be any kind of unsolicited interference in the judiciary and judicial decisions should not be subjected to random revision. However, an individual can always approach judicial reviews and also can appeal to reduce any sentences ordered by the judicial officers.
  4.  Every member of society should have the right to approach the judiciary whenever required.
  5. An independent judiciary should ensure that the judicial proceedings are being performed without any prejudices and biases toward any of the litigant parties. 
  6. The Member state should ensure that the judiciary has enough resources to run its function properly.

Freedom of expression and association

According to the Universal Declaration of Human Rights (UDHR), every individual has the right and freedom to express, believe and associate etc. The judicial officers,  as members of the society, also have the same rights as any other common citizen. However, while exercising those rights, the judges should maintain and preserve dignity and impartiality.

The judges are also free to form any kind of association with fellow judges for representing their own interests as well as promotion of judicial independence.

Qualifications, selection and training of the judicial officers

The judicial officers should be persons with high morale and integrity as well as should have appropriate qualifications in law and proper training.

The selection of judicial officers should not be done following any method with “improper motives”.

The judges should be selected based on their qualifications and should not be discriminated against on any grounds such as “race, colour, sex, religion, political or other opinions, national or social origin, property, birth or status”. However, the candidate should be a citizen of the concerned country and this requirement should not be termed discriminatory.

Conditions of service and tenure

The conditions of service and tenure of the judges such as the term of office, security, salary and pensions and also the age of retirement should be secured by the law.

The appointed or elected judges should have a particular retirement age or the end of the term as a judge.

The promotion of the judges should be based on the ability, integrity and experience of an individual judge instead of any other preferences.

The internal judicial administration should decide the types of cases to be assigned to a particular judge.

Professional secrecy and immunity

In the judiciary, the maintenance of professional secrecy should be prioritised. Under no circumstances, a judge should be forced to testify any confidential information other than the information acquired in public proceedings.

Judges, while exercising their judicial powers, should have personal immunity from civil suits for monetary damages. However, any disciplinary proceedings, right to appeal or the compensation provided by the State are not subject to this.

Discipline, suspension and removal

In case of any complaint against any judge, he should have the right to a fair hearing. The complaint should be examined ‘expeditiously’ and be kept confidential initially.

A judge should only be suspended or removed in accordance with proper judicial conduct only if he is found unfit to discharge concerned duties.

However, these should be subjected to an independent review. But it is not applicable in cases of the decisions of the highest court and in impeachment.

Bangalore Principles of Judicial Conduct (2002)

The Bangalore Principles of Judicial Conduct (2002) was officially adopted at the Peace Palace in The Hague, Netherlands. The Principles established the basic ethical standard for working of the judiciary and provided a framework of judicial conduct. It dealt with six mandatory ethical values namely judicial independence, impartial discharge of judicial duties, integrity, propriety, equal treatment to all and lastly performance of judicial duties with competence and due diligence and the ways to implement them.

Latimer House Principles

Latimer House Principles (2008) are the principles adopted by Commonwealth countries dealing with the three branches of the government. It also emphasises the independence of the judiciary to strengthen democratic values.

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The necessity of an independent judiciary

Judiciary is the most important organ of the government and it keeps the overreach and abuse of power by the Executive and Legislature in check. Judicial independence is vitally important in a democracy. Individual judges and the judiciary as a whole must be impartial and independent of all external pressures and of each other so that those who appear before them to seek justice and the public, in general, can have the confidence that their cases will be decided fairly and in accordance with the law. 

While carrying out their judicial function, judges must be free from any improper influence. Such influence can come from any number of sources such as the executive, legislators, the media as well as the particular litigants, especially the particular pressure groups. 

The responsibilities of individual judges have increased with the growth in the role of the government in our daily lives over the last century. Disputes between the citizens and the state have also increased together with the growth of governmental functions. Now, the judiciary, apart from providing justice, also protects the common citizen from the unlawful acts of the government. Thus, the requirement for an independent judiciary has increased ever since.

An independent and impartial judiciary is one of the cornerstones of democracy and this principle was endorsed by the UN General Assembly in 1985 and 1990. 

Judicial independence in India

In the post-independent era, the concept of judicial independence has been enshrined in the Constitution of India itself. There are several constitutional provisions that help in securing the independence of the judiciary. The provisions are discussed below:

Security of the tenure of judges

Article 217 of the Constitution states the conditions and appointing a judge of a High Court. Once appointed, the Supreme Court and high court judges have the tenure to continue their services until reaching the age of sixty-five years and sixty-two years respectively. 

However, the age of retirement of the High Court judges was proposed to increase to 65 through the Constitution (114th Amendment) Bill, 2010. But it was not passed.

Article 124(2) lays down that the President should appoint every Supreme Court judge and they will remain in office until the age of sixty-five years. 

For the appointment of the judges in the High Court and Supreme Court, the President shall consult the Chief Justice of India and here consultation means concurrence and this was held in the case of Supreme Court Advocates on Record Association v. Union of India (1993), also known as the Second Judges Case (1993).

Salaries and Allowances of judges

Article 125 of the Constitution of India deals with the salaries and allowances of judges. The salary is specified in the Second Schedule and may be decided to change by the Parliament by law. 

In the cases of judges in the Supreme Court, their salaries are provided by the Consolidated Fund of India and the judges of the High Court of the respective states are paid by the consolidated fund of that state.

Powers and Jurisdiction of the Supreme Court

Under Article 32, the Supreme Court of India has the power to issue writs and an individual may move to the Supreme Court to access proper justice. Though the Parliament can change the pecuniary jurisdiction in civil matters, it cannot curtail any powers of the Supreme Court. 

No discussion of judicial conduct in the Parliament or state legislatures

Article 211 of the Constitution states that there should be no discussion of the judicial conduct of any High Court or Supreme Court held in the Legislature of a State.

Contempt of Court

Under Article 129, the Supreme Court has the power to punish for contempt of itself. Similarly, Article 215 confers the power to the High Court to punish for contempt.

Complete independence of the judiciary

Article 50 of the Constitution ensures complete independence of the judiciary and frees it from executive control. It contains one of the Directive Principles of State Policy and states that the state shall take steps to separate the judiciary from the executive.

One of the most recent and landmark cases regarding judicial independence is the case of Supreme Court Advocates-on-Record Association and another v. Union of India (2015), the constitutionality of the Constitution (99th Amendment Act), 2014 was challenged by the Supreme Court Advocates-on-Record Association. The amendment sought to form the National Judicial Appointment Commission (NJAC) to appoint judges. National Judicial Appointment Commission would have been a body containing the following six persons:

  • Chief Justice of India acting as ex officio Chairperson;
  • Two other senior judges of the Supreme Court acting ex officio;
  • The Union Minister of Law and Justice also acting ex-officio; and
  • Two eminent persons are to be selected by a committee consisting of the Chief Justice of India, Prime Minister of India, and Leader of Opposition in the Lok Sabha for a period of three years once only. One such person would be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman. 

The Supreme Court held it unconstitutional and struck it down since the amendment is a threat to the independence of the judiciary.

Challenges to judicial independence in India

An independent judiciary cannot be taken for granted. It is important to keep in check that the judiciary is not politicised and is free from political influences as much as possible. Otherwise, judicial independence will be at stake. The basic challenges faced by the judiciary are as follows:

Possible biases

It is expected that the judges should be completely impartial and free from biases while declaring any verdict. The maxim Nemo Judex In Causa Sua originated from this idea. It means ‘no one should judge their own cause’ because this is the main reason for biases.

However, there are mostly three types of biases of the individual judge which may hamper the impartiality of judicial proceedings. The biases are listed below as follows:

  • Personal bias in the judiciary is the bias created due to a relation (friendship, grievance or egoism) between both the parties, adversely affecting the verdict. In the case of Nanjundappa (B.N.) vs State Of Mysore (1964), the Karnataka High Court declared that while appealing a case on the ground of personal bias, it must be proved effectively.
  • The issue of pecuniary bias arises when the deciding party has any kind of monetary or financial interest in the subject matter of the dispute.
  • Subject matter bias arises when the authority is directly involved in the subject matter of the case. In the case of M/s Chetak Construction Ltd. v. Om Prakash & Ors. (1998), the court set aside an impugned order and assigned the appeal to another judge to decide without being influenced.

Judicial corruption

Judicial corruption is the exertion of inappropriate influences and situations which affect the impartiality and neutrality of the judicial system. An increase in judicial corruption leads the general public to lose their trust in the judiciary and weakens public morale. 

According to the Central government, over 1600 complaints have been received on the functioning of the judiciary, some of which are on judicial corruption.

Influence of political parties

Political influences on the judiciary are a matter of grave concern. The political parties often try to malign and disparage the Indian judiciary for personal and political interests. The members of any political party often interfere to stop the working of the judiciary if their interest is not satisfied. Recently, the members of the ruling party in West Bengal protested in front of the court of a judge in Calcutta High Court and blocked the litigants from entering the courtroom, apparently because they were not satisfied with the judgements passed by the Hon’ble judge.

Security issues while discharging judicial duty

The judges are also human beings and naturally, they are concerned with the safety and security of their families. It is not uncommon for a judge to receive threats for the honest discharge of judicial duties. 

Life-threatening situations faced by individual judges for mere discharging of judicial duties are not uncommon. There have been several instances where a judge has been murdered in open daylight for passing an unfavourable verdict.

In 1989, Justice Neelkanth Ganjoo, a judge in the Jammu & Kashmir High Court was assassinated by militants. In 2021, Additional Sessions Judge Uttam Anand in Jharkhand was brutally murdered in an open street. The Supreme Court took suo moto cognisance of the issue of the safety of judges and the persons involved in his murder have been awarded rigorous life imprisonment till death. These incidents raise serious concerns regarding the safety of the judges while performing their judicial duties.

Interference of other two organs

Even though the doctrine of separation of powers is followed in India, the other two organs of the government often try to encroach on and limit judicial powers. Alternatively, the judiciary also tries its best to keep the executive and legislature in check. However, the functional overlap of the organs may take place sometimes which hampers the impartial working of the judiciary.

Lack of transparency in the appointment of judges

The appointment of a judge is done following the collegium system in India to safeguard judicial transparency. However, there are flaws in the collegium system that need to be rectified. Former Chief Justice P.N. Bhagwati, known for introducing Public interest litigation (PIL) was not satisfied with the collegium system for appointing the judges because of the involvement of the Executive. A former Supreme Court judge AK Sikri stated that the appointment of judges is mostly done based on personal “impressions” rather than the qualifications and integrity of the individual judge.

Influence on the judiciary from powerful quarters

The influence exerted by powerful quarters for personal and private gains greatly hampers the working of the judiciary. Examples of offering bribery to judges are very common. A Senior Civil Judge Rachna Tiwari Lakhanpal of Tis Hazari Court, Delhi and her husband have been booked by the CBI for disproportionate assets under the Prevention of Corruption Act. Apart from that, the personal political or ideological influences of the individual judges may affect the nature of the verdict passed.

Conclusion

Judiciary is often termed as a ‘fragile bastion’ as there are apprehensions that the impartiality and neutrality of the institution and the personal integrity of an individual judge may crumble owing to the outside influences and pressures it has to face. An independent judiciary is the base of a thriving democracy and acts as the last recourse for people to secure justice. It is important to remember that the ultimate responsibility to maintain the independence of the judiciary is on the shoulders of the individual judges. 

At the end of the day, it must be remembered that the independence of the judiciary is an indispensable requirement to uphold the rule of law. That is why the government and media rhetoric that aims to villainise the judiciary should be of great concern.

Despite all the existing flaws in the judicial system, it serves as the last recourse for common people to seek justice. Without an independent judiciary, a democracy cannot function properly since there will be no institution to protect and supervise the rights of the common people. Hence, the independence of the judiciary must be upheld at any cost.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

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Legal drinking age in Germany

By
Rachit Garg
-
0

This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. The article talks about drinking culture and its legality in Germany. It provides legal age for consumption of alcohol and laws related to it. 

It has been published by Rachit Garg.

Introduction 

What would you do if a bottle of alcohol or beer was made available to you at your doorstep, and that too, at a very cheap rate like water? Will you let your children consume it or first think about their age? Well, in Germany, consumption of alcohol is a very common and normal practice, unlike in other countries like India. People can buy alcohol anywhere at any time without any restrictions. The only requirement is the legal age to drink. 

In Germany, alcohol is available at the same price as water and, in some places, even cheaper than that. In such a situation, there is more consumption of alcohol and beer. In order to prevent young children from consuming it and indulging in criminal activities, as they are more prone to such activities, the government has set a legal drinking age. After such an age, a child develops a sense of responsibility and maturity and can even differentiate between what is wrong and right. The article talks about this legal age and other laws and rules related to the consumption of alcohol in Germany. 

Objective of defining a legal age for consumption of alcohol

The main objective of such German laws is to protect youth from severe alcohol consumption, which, if not done, may lead to a situation where these young people will have no control over their senses. These laws do not restrict them from drinking alcohol, but rather help them to have an appropriate approach towards its consumption. 

Another aim is to let the youth apply their mind and rationale in thinking about what amount of alcohol is good for their health and society. Excessive alcohol leads to several problems like bad health, family issues, violence and aggressive behavior and disruption of peace and harmony in society. If there would be no law that regulates the age for drinking, children may start consuming it at a tender age, which will lead to various problems in the future. Thus, the laws are aimed at reducing such instances and making the youth realize that consumption of alcohol is not bad if done wisely.

When can a person legally drink alcohol in Germany

Whenever we talk about the legal age for alcohol consumption, there are 2 aspects related to it. These are:

  1. The legal age to purchase alcohol.
  2. The legal age for its consumption. 

The law that regulates the consumption of alcohol by defining a legal age is known as Jugendschutzgesetz – JuSchG (Protection of Young Persons Act, 2002). It was adopted in 2002 by the German government with the aim of reducing the chances of excessive alcohol consumption, which leads to other crimes in the country. In Germany, if you are under the age of 18 years old, you will need to provide a passport, ID card, or driving license in order to prove that you are of legal age. In addition to this, you will also need to show proof of age when purchasing any alcohol, no matter how low the alcohol level is.

Section 1 of the Act considers people between the age group of 14-18 as adolescents and defines a custodial person as the person who is responsible for the care of children and minors. The Act provides no specific legal condition or restriction for the consumption of alcohol in private places, as it is the duty of parents to ensure the health and safety of their children. But it also provides a framework to regulate consumption in public places like pubs, restaurants, clubs, etc. 

Thus, the Act gives 3 categories for the purchase and consumption of alcohol in the country under Section 9. These are:  

  • No alcohol must be sold to children below the age of 14 years or adolescents nor can they consume it.
  • Adolescents or people above the age of 16 years can consume alcohol in public places only if they are accompanied by their legal guardians or parents. 
  • The third category is for people over 18 years of age. They can easily consume alcohol anywhere anytime without any restrictions. 

Penalty for violation of the Act

Over the years, different states have witnessed various offences related to alcohol and its consumption. One of them was the illegal supply of alcohol to people belonging to underage groups. To avoid and reduce this situation, the Act has specified punishment and fines in this regard. According to Section 28(1) of the Act, the following people are liable for civil penalties:

  • Any person or vendor who sells an alcoholic drink to an underage person; or 
  • A person who sells it in a vending machine that contravenes Section 9(3); or 
  • A person trading in sugared beverages and alcohol in contravention of Section 9(4)

Apart from this, every state in the country has its own mechanism of levying fines and penalties to reduce the illegal supply of alcohol and other such activities that promote alcoholism in underage people. 

Amendment to legal age for drinking in Germany

As reported, some people, along with other politicians in the country, demanded a rise in the legal age for the purchase and consumption of alcohol in the country. The German government  believes that there are numerous reasons for proposing to raise the age of alcohol consumption from 16 years to 18 years. Children below 16 years are allowed to drink in the presence of their parents or custodial person, which is still not a good practice, even for the health of these youngsters. He also proposed having certain restrictions on alcohol, tobacco, and gambling advertisements, stating that this may affect young minds and hamper their growth towards development.

But according to the reports, the government has declined to make such an amendment based on statistics on alcohol consumption. According to the statistics and data of 2020, the consumption of alcohol has decreased in the country in the past few years, and this decline in consumption has continued even in 2020 when the world was facing the deadly COVID-19. The country saw another 5% decline in 2020. 

The government believes that education and awareness of responsible consumption of alcohol are working and fulfilling the purpose of making the youth realize the importance of a correct approach towards alcohol. Because of such a decline, the government has decided not to increase the age of alcohol consumption in the country. It is believed that people have now become conscious about their health and consume alcohol wisely. 

The law is necessary for those indulging in malpractices and illegal supply. Such suppliers are involved in black marketing and promoting the illegal consumption of alcohol. This problem needs to be addressed at the earliest so that such activities can be controlled and regulated in a timely manner. The need is to make laws and penalties more stringent and hefty for such suppliers and dealers, and even those who are buying alcohol illegally.

Comparison with other countries in the European Union

Like Germany, various other countries which are a part of the European Union have restricted minors and children of a tender age from consuming alcohol. They have set legal ages for the purchase and consumption of alcohol in their countries. Let us first discuss the legal age set for the purchase of alcohol in different countries of the European Union. 

Legal age for purchasing alcohol

  • There are 21 member countries of the European Union where children cannot buy alcohol. Some of these are Bulgaria, Croatia, Finland, France, Greece, Ireland, Italy, Hungary etc.
  • Some countries have set a minimum age for purchasing alcohol. Countries like Denmark, Germany, and Belgium have set a minimum age of 16 years for this purpose. People of 16 years can easily buy beverages containing 1.2% of distilled alcohol whereas people of 18 years are allowed to buy spirits containing more than 1.2% of distilled alcohol.
  • On the other hand, Sweden has added one more category where people over 20 years old can buy beverages having 3.5% or more distilled alcohol. 
  • The legal age for purchasing alcohol in Cyprus and Malta has been restricted to 17 years and in Luxembourg to 16 years. 
  • Austria has given different mechanisms to determine the legality of age, which depends on different regions. The age can be 16 or 18 which also depends on the amount of alcohol a person is purchasing. 

Legal age for consumption of alcohol

  • In countries like Austria, Belgium, Bulgaria, Cyprus, Greece, Malta, etc., the age for consumption is the same as the age for purchasing alcohol. There are 13 such countries. 
  • Like Germany, there are other countries where there is a restriction on age for the consumption of alcohol only in public places like restaurants, pubs, clubs etc. These are Portugal, Greece and the Netherlands. 
  • In Estonia, the minimum age for alcohol consumption is set at 18 years but there is no minimum age for purchasing it. 
  • In some parts of the United Kingdom, like Wales, Scotland, and England, children belonging to the age group of 16-18 years are served alcohol with their meals only in the presence of their parents while the legal age in Sweden is 18 years.
  • However, in countries like Croatia, Denmark, Finland, Ireland, Italy, Poland, Romania etc, there is no imposition of any legal age for the consumption of alcohol. 

Conclusion 

It is necessary to regulate the conduct of children until they attain maturity and clarity about what is wrong and what is right. This is one of the primary duties of parents. The other duty of parents is to make them sensible and responsible so that they can understand what is good and bad. Similarly, when we talk about the consumption of alcohol, it is necessary that it is done wisely. Alcohol has various remedial and other beneficial qualities, but if done in excess, it may also harm the body, and this is what young people have to realize. 

As parents, it is their duty to educate them and make them aware of a good and rational approach towards alcohol and its consumption, but even the state can impose certain restrictions in order to avoid such young people from indulging in excessive alcohol consumption. This is the reason why some countries have set a minimum age for the consumption of alcohol. Germany in this regard gives 3 categories, which have been discussed above. But despite the restrictions on age, there has been illegal purchase and supply of alcohol and beer, especially to underage people. The government has to address this problem as soon as possible, and they must make the liability stricter. Currently, the only liability to which a person is exposed is a civil penalty. There must be some changes in the law as per the advancement of time and an increase in a particular crime in order to maintain harmony in society.  

Frequently Asked Questions (FAQs)

Do the states have the right to set hours for the sale and purchase of alcohol in Germany?

Yes, the states in Germany can impose closing hours for shops, restaurants, and other establishments having a license to sell alcohol with the help of their state legislation. 

What are the other subject matters of the Protection of Young Persons Act (Jugendschutzgesetz)?

Apart from the legal age for alcohol consumption, the Act provides provisions for various other matters, like:

  • Media
  • Gambling
  • Tobacco

What is the legal age for the consumption of alcohol in India?

The different states in India have different legal ages for the consumption of alcohol. This age ranges from 18 – 25 years. This is because alcohol is a subject of the State List under Entry 8 in the VII Schedule of the Constitution. There are some states that fall into the category of “dry states” and have completely banned the sale and purchase of alcohol, along with its consumption. These are:

References 

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How to legally change your name in India

By
Rachit Garg
-
0
Judiciary

The article is written by Tejaswini Kaushal, a student at Dr. Ram Manohar Lohiya National Law University, Lucknow. This article seeks to elucidate upon the step-by-step process of getting one’s name legally changed in India for a plethora of reasons.

It has been published by Rachit Garg.

Table of Contents

Introduction 

The term ‘name change’ refers to the process of altering one’s name, whether via the addition of initials, a single letter, or through legal action if one chooses to keep a name other than one’s given name at birth, through marriage, or adoption. A person’s newly adopted name becomes their legal name if they change their name, therefore it’s vital to keep this in mind. Additionally, changing your name has legal repercussions. Therefore, one should carefully evaluate its legal implications before deciding on a name change.

A name change may be for a plethora of reasons, including personal, professional, political, social, and religious reasons. Some of the few typical explanations for a name change may be due to an urge to adopt a new, fancy name, to change the existing name’s present spelling, a change in religion, a change in gender, after getting married or getting a divorce, or on astrological grounds. 

People occasionally choose to be addressed by a name other than their given name. The process of changing one’s name for legal use is of extreme importance to all common citizens. Even if you informally or formally ask your family and friends to call you by a new name, you must go through the legal procedure to have your name legally changed so that it will appear on all of your identification cards, documents, educational transcripts, and other vital papers. One can alter their name in different ways. Affidavit applications may be submitted by advertisement publication or a gazette announcement. 

Benefits of officially changing your name

Straightforward process during marriage and divorce

Changing your name is a simple and easy process, both during marriage and divorce. If a woman decides she does not wish to take on her husband’s name after marriage, divorce proceedings may be started under her maiden name or any other name that has been officially recognized. Even after a divorce, any spouse may choose to continue using their marital name as long as neither does so in an effort to cheat the other.

No need for a lawyer

Although the name change services are laborious, you may handle them on your own and do not need a lawyer to process and carry out any of them.

Permanent on record

If a name change is accomplished through the proper channels, it becomes an authentic, permanent record that anyone may examine or access. It becomes simple to confirm this. Additionally, it makes it easier to obtain paperwork, pay taxes, etc.

Gives you official recognition

If you apply for a document or public service as an Indian citizen, your application will be authorized and issued with your new name listed as your official name. If you choose to alter your name via a technique that is insufficient or improper, the same will not be available. Some government agencies, public sector banks, etc., could reject such a person for providing false identification.

Updated Aadhaar card and other documents

After changing your name, you may need to update other crucial identifying documents like your Aadhaar, PAN, bank account number, employment identification, etc. with your new identification. Therefore, in order for the records to be updated, the formal name change procedure must be followed in order for it to be accepted and handled by the relevant authorities.

Who can have their name changed

  • The applicant should be Indian.
  • They must possess a legitimate government ID.
  • He or she must have a good justification for the name change.
  • The applicant should have attained 18 years of age. Minors should be accompanied by their parents while visiting a government agency.

Who can apply for a name change

  • The person themself.
  • A guardian for the minor.
  • Either husband or wife, on behalf of the other.
  • A family relative.

Restrictions on change in name

In accordance with Indian law, people are free to modify their names to whatever they like. However, there are a few restrictions, which are listed below:

  • The name shouldn’t be vulgar or insulting.
  • You cannot select a lengthy, punctuation-filled name.
  • Unless you can demonstrate that you have no desire to deceive anyone, the Court will not permit you to alter your name to that of a well-known individual.
  • If you want to alter your name only to conceal your identity, name changes are not permitted.
  • It is not permitted to alter your name in order to dodge financial obligations or legal troubles.

Documents required for getting your name changed

  1. A duly signed undertaking by the applicant 
  2. Two passport photos of the applicant that have been self-attested 
  3. A copy of the TD evidence that has been self-attested.
  4. A CD (Compact Disk) certificate containing the print matter without the witness section in MS Word and with the old name specified in place of the signature.
  5. ID Card/Aadhaar Card.
  6. The attested affidavit.
  7. The prescribed document contains the applicant’s signature, as well as those of two witnesses.
  8. The original ad that was printed in the newspaper notifying the change in name.
  9. A certificate that is properly signed by the applicant and states that both the physical copy and the digital copy have the same contents
  10. A letter of request and the necessary payment

Fees charged

  • Stamp Paper – Rs. 5/- or Rs. 10/-
  • Printing Fee – Rs. 1100/-
  • Gazette notice including airmail (for NRIs)- Rs. 3500/-
  • Extra Copies of the Gazette (Maximum two) – Rs. 35/- each

Duration that the process takes

It depends on both the applicant’s application and the department. It will take less time if the documents that are attached are accurate. To have all your documentation in order and attested, it can take up to six months and a few trips to local agencies. The notification can be obtained from the e-gazette website after it has been published.

Additional details about the process

  • The printing costs for publishing a name change are Rs. 1100 for an individual.
  • The payment for the printing cost must be made in advance in cash or by demand draft to an Indian bank. 
  • Postal Order must be made out to the Department of Publication’s Controller at Civil Lines, Delhi-110054. 
  • The public dealing hours in this department for the purpose of change of name are 10:00 AM to 1:00 PM and 2:00 PM to 4:00 PM on all working days.  
  • The additional cost for the extra copies of the Gazette is Rs. 35 per copy, up to a maximum of 2.
  • For Indians who live overseas, the cost of publishing a name change in the Indian Gazette is Rs. 3500, which also includes air mail fees.
  • You can also present your paperwork in person and pay cash.
  • The supplied papers shouldn’t be older than a year.
  • Once submitted, the papers cannot be received back. Therefore, be mindful to retain and maintain the necessary originals and/or copies of any papers you believe are necessary to be kept with you.
  • If a person adopts the name of another faith without changing their religion, they must present an affidavit properly signed by the SDM stating that they haven’t done so. Such advertisements will cost Rs. 1100+ 250= Rs. 1350/- each.
  • Such a thing for a change of religion must be documented in a document that you make with the signatures of two witnesses and in the newspaper as well.

The official details of the process may be found here.

Offline process of getting your name changed

There are three requirements that must be met in order to approve the name change:

  • Submission of an affidavit: An affidavit must be produced for the name change.
  • Publication of an advertisement: An advertisement in the form of a notice must be printed in the newspaper declaring the change in name
  • Notification in the Gazette: A notification of the change in name must be published in the Indian Gazette.

Submission of an affidavit

Affidavit submission is the initial stage of the legal process. The following steps need to be undertaken for submitting your affidavit requesting a change in name:

  1. To submit the affidavit, you must speak with a notary public. Approach a notary public in your area and state your desire.
  2. The notary will advise using stamp paper with the appropriate value for the affidavit of the change in name.
  3. When you have the document, you must supply the following information:
    1. Name (old name as well as the new one), 
    2. Current address, and
    3. The rationale for the new name (astrology, religion, numerology, marriage, divorce, etc.)
  4. The affidavit must be printed on plain stamp paper and signed by two witnesses after that. It must be legally signed by two individuals holding the status of gazetted officers. 
  5. Make sure you get their stamp as well as their signature (rubber stamp).
  6. Married women who want to add their husband’s name as initials or modify their last name must give the information below:
    1. The old name, together with the father’s name and address; 
    2. New name, along with the husband’s name and address; and 
    3. Date of the marriage
  7. Your former and current names are both listed on the document. Affidavits can be used to change the name completely, the last name, or just a few letters within the name.
  8. A copy of the affidavit should be kept. This important document is useful for any upcoming legal requirements.
  9. Indians living abroad who want to alter their name must submit a deed that states the change and is properly signed by the Indian High Commission or the Indian Embassy.

Publication of an advertisement 

The next step after making the declaration is to print an advertisement or notice that you have changed your name in the neighbourhood newspaper. You must choose two publications for this: one in the state’s official language and the other in English daily. 

For instance, one may get one advertisement in any national English newspaper like the Times of India, The Hindu, Hindustan Times, Indian Express, etc. and one other local language newspaper as per the state you reside in.

The newspapers might help you with this because they dedicate a space for these alerts. Any newspaper can provide the format upon request. The criterion is to choose two well-known daily publications and publish an advertisement about the change in your name specifying the following details:

  • Old name.
  • New name.
  • Date of birth.
  • Current address.

If a married woman wants to alter her last name after getting hitched, she should include her husband’s name and address in the notice. When your announcement appears in the newspaper, don’t forget to gather as many copies as you can and save them for later use. Despite the fact that one copy will do, it is recommended to keep as many original newspaper advertisement copies as well as scanned copies with you just to be safe.

Notification in the gazette

With only the gazette procedure left, the name change process in India is effectively over. Your name change will become official after it is published in the gazette. For people working for the government, the name change gazette notification is required. For everyone else, it is not. However, it provides strong evidence of your name change. It could be wise to proceed as it just entails sending a few papers for publishing.

To submit the gazette notification, follow these instructions:

  1. Bring a copy of the ‘Deed changing name form,’ which is available at the Controller of Publication, Department of Publication, or a letter expressing your need to change the name would suffice.
  2. Request that original copies of any advertising with dates appear (attach both advertisements)
  3. Bring two certified photos with you to guarantee that the process goes well.
  4. Bring identification, evidence of the address (the address should match what is published in the newspaper), and an affidavit. Any address change might lead to the application being rejected.
  5. To acquire a complete list of everything that has to be submitted, call the Controller’s office of Publication before sending the following information, and make a note of it.
  6. Before mailing the papers to the address, you should also place them in an A4-sized envelope.
  7. Information and the relevant copies of the gazette in which the advertisement or notification has appeared will be sent by the office of the Controller of Publication. 
  8. Your name change will be published in the gazette by the government. Depending on whether you want a public notice or not, the cost of gazette notices varies. 
  9. Cash or a demand draft/postal order made in the name of the Controller of Publication, Department of Publication, Civil Lines, Delhi – 110054, may be used to pay the fee. The office hours for this address are 10 AM to 1 PM and 2 PM to 3 PM on business days. Alternatively, you can courier or fast post the envelope with all the necessary information to the aforementioned address. 
  10. When published, store the gazette notification safely for future use.

Online process of getting your name changed

The procedure of changing your name has not yet gone fully digital. However, it is only being done partially digitally in Maharashtra. You must follow the above instructions in order to publish the Gazette:

  1. Reach the online gateway.
  1. Next, select ‘Register New User’.
  2. To join the site as a new member, provide all of your personal information.
  1. Log into your account if we have your ID from the relevant citizen service. You may check your transaction history as well to keep track of your applications.
  1. Log in and go to the application page to submit an application to the Directorate for Printing and Stationery.
  1. After choosing Gazette second semester for a name change, click on Proceed.
  2. You’ll be sent to the online edition of the Maharashtra Gazette.
  3. In the Gazette Advertisement option, modify your name.
  4. A PDF document will load online. There will be information on this page, along with a form for altering your name.
  5. Return to the page where the PDF file was first shown after completing the form. Select the checkbox next to ‘I accept the above conditions’ and click Next to proceed.
  6. You will then be sent to a form where you can fill up your contact information and other pertinent details.
  7. Complete all required fields, submit all required files and pay the appropriate amount using the payment method of your choice.
  8. Once the funds have been received, you will be able to track the status of your request using the Citizen Service Portal ID you created.

For other states, the process has not been made online yet and needs to be conducted through the post. Otherwise, many online legal service providers do undertake to perform the relevant procedure for you in return for nominal service fees.

Guidelines for public notice

The set of documents required for publication or public notice in the Gazette of India [Part IV (i)] includes a duly signed undertaking, original newspaper, a duplicate of the prescribed proforma signed by the applicant and two witnesses, a CD certificate, two self-attested passport size photographs, a-certificate duly signed by the applicant declaring therein that the contents of the hard copy and soft copy are similar, a request letter along with the requisite fee, and an attested photocopy of relevant medical and legal documents.

The applicant is requested to download his/her gazette from the official Gazette of India website, which can be accessed here. 

The following steps need to be followed:

  1. Search  ‘gazette’
  2. The search category should then be chosen as ‘weekly gazette’ 
  3. Select in Part and Section- ‘Part IV’
  4. Download the required pdf file 
  5. Use the ‘find in page’ option or the control key + F key to find your own name in the file. 
  6. Download the whole gazette pdf file and this can act as the requisite proof during submission to the government department. 
  7. You can make your own copy of the file to print on your own. This requires no further certification from the department.  

Types of name change affidavits

There are several sorts of affidavits, and the petitioner may utilise affidavits for the following purposes:

  1. Name change affidavit

This affidavit is used to legally change your name on all official documents and to issue a notice in the Indian Gazette.

  1. Name change after marriage

A lady applicant may use this affidavit to change her married name back to her maiden name and have it published in other papers.

  1. Affidavit for one and the same person

This affidavit serves as a multi-name affidavit. The ‘one and the same individual’ affidavit can be used by the applicant who has different names listed in the documents and wants to show that all of the names belong to the same person.

  1. Annexure “D”

Annexure D is used for the name change in passports of lady applicants after their marriage. Therefore, you can choose Annexure “D” Affidavit if you want to modify your maiden name on your passport.

  1. Annexure “E” 

The affidavit must be submitted to the department if you want to have your name changed on your passport, regardless of how small or significant the change is.

Sample formats for name change documents

Sample CD certificate

“This is to certify that:

I, _______(old name)_______, son/daughter/wife of _______________________, ________________(Address)___________declare:

1. That the matter in the CD and the hard copy is the same and l am responsible for any mismatch. 

2. That l am responsible for the quality of the CD 

3. That the CD is in MS WORD Format.

4. That the above statement is true and correct.”

This has been derived from the officially specified format which can be accessed here.

Sample public notice

“PUBLIC NOTICE 

It is for general information that I, _________(Real name)_________ s/o, d/o  ______________ residing ____________________(Address)___________________________________declare that name of mine/my father /my mother/my wife/my husband/my minor son/ my minor daughter has been wrongly written _________________. My minor son/my minor daughter, _______ age (not the date of birth) educational documents/service book/driving licence/pan card/voter id card/ Aadhaar card.The actual name of  ________________, mine/my father /my mother /my husband/my wife /my minor son/my minor daughter is/are respectively which may be amended accordingly. 

It is certified that I have complied with other legal requirements in this connection. 

(Real Name and Signature of applicant) 

Witness 1:- ____________________ Name- ________________________ 

Address- ______________________ Mobile- _______________________

Witness 2:- ____________________ Name- ________________________ 

Address- ______________________ Mobile- _______________________”

This has been derived from the officially specified format which can be accessed here.

Sample Affidavit

“AFFIDAVIT

I, _______________________________, S/O, W/O,D/O _____________________________,

R/O _______________________________________________________________________

Do hereby solemnly affirm and declare as under:

1. That my name has been recorded as _______________(old name)___________ in all the educational certificates and in other relevant documents

2. That now I have changed my name as ___________(new name)___________ in place of my previous name i.e. ___________(old name)___________________

3. That in future will be known by my new name i.e. _____________(new name)__________ in future for all the purposes.

4. That my statement is true and correct.

DEPONENT

VERIFICATION

Verified at _______________ on ___________(this day)________ of _______(year)_______ that the contents of the above said affidavit are true and correct to the best of my knowledge and belief.

DEPONENT”

Relevant additions to this format may be made in case there is also a change in gender or religion, or if the change in the name is because of marriage or divorce.

The official format for the affidavit specified by the government (Department of Publication) may be accessed here and here.

The official format for the affidavit specified especially for government employees by the Department of Publication may be accessed here. 

Sample advertisement 

  1. “I, ________(old name)_______, residing at _______(address)__________, have changed my name to ___________(new name)__________ and will be known as ___________(new name)__________ from here on in. I have submitted an affidavit to this effect, which was signed by on.”
  2. “I, ________(old name)_______, S/O ____________(father’s name)________, residing at _______________(current address)___________, have changed my name to ___________(new name)__________ for all future purposes.”
  3. “I, _________(old name)__________  have changed my name from ________(old name)_________ to _______(new name)_______ by affidavit sworn before the Notary Public, ______(place)________ on _____(date)______. Henceforth, I shall be known as _________(new name)__________ for all purposes.

________ (Name)______ and ______(Complete postal address)_________.”

  1. “I, _________(old name)__________  married ___________(husband’s name)________  on __________(date of marriage)__________, residing at _______________(current address)___________, have changed my name to _______(new name)_______ vide Affidavit dated _____(date)______ sworn before Notary ________(name, place)_______.”

How to obtain a record of the change in name

The process of changing one’s name after marriage, after a divorce, or just for good luck is time-consuming and involves a number of procedures. Getting a hold of the name change record might take some time, even though changing one’s name is a laborious and drawn-out process, including legal requirements. The most effective way is to obtain a name change record from the court, and then this can be utilised by you to execute the change in name for all your identity cards and other documents.

The process to obtain a name change record

Apply for a new driver’s licence

Your last name may be on the previous licence plate. So, after obtaining the name change record, apply for a new licence. You will receive a new licence with your new name once you have completed the Department of Motor Vehicles form and submitted all the required paperwork, including the name change record.

Apply for a new Aadhaar card

The old name in Aadhaar must be changed next. So, after receiving the name change record, request for the Aadhaar information to be corrected and attach the name change record. You can obtain an updated Aadhaar using your new name in an easy manner as described ahead.

Apply and update other documents

After obtaining the updated Aadhaar and licence, changing other government records is simple. You may quickly update other official records of yours using your new Aadhaar and licence as you receive them. It is simple to apply for new official papers and receive the same. 

Pay the fee to obtain extra copies of the name change record from the court

In addition to obtaining copies of the name change record for Aadhaar and licence applications, you can also get extra copies for future use. By paying an additional charge, you can get more name change paperwork. The cost of receiving extra copies of the name change record, however, varies from state to state and from court to court in each state.

Importance of obtaining a name change record

To demonstrate that your last name has been changed to a new name, you must have a name change record. Obtaining key papers like Aadhaar card, driver’s licence, bank records, and birth certificate also require name change paperwork. It is also a necessity in the instance of marriage, where more often than not, the bride adopts her husband’s family name. Similarly, post-divorce, many women decide to go back to their maiden surname. And even in the cases of change of name due to religious beliefs or change in caste that need official documentation to have validity for administrative work. Also, in the cases of change of gender, having a legal name change record can assist them in establishing their identity. 

How to change your name in your legal documents

If the necessity arises, a record of a legal name change may be changed. If you have officially changed your name and wish to update it on all of your official papers, including your driver’s licence, social security card, and Aadhaar, you may refer to the following steps:

How to change name on your driver’s licence

The driving licence is a crucial document to have in order to obtain a valid licence in any state or nation. It is crucial to provide all the required paperwork, including any papers proving a name change, if applicable. 

To alter your name on your Indian driving licence online, go to the Parivahan website and follow these instructions:

  1. Click on ‘Apply for a name change’ after selecting the state name from where you want to use the service. Enter your driving licence number and birthdate and proceed.
  2. The applicant’s name and other information will then show up on the screen. Here, you must choose ‘State’ and ‘RTO’ and then click ‘Proceed’ once again. Your address information will show up on the screen. After you have checked the information, click ‘Confirm.’
  3. Click ‘Generate OTP’ after completing the e-KYC authentication process. Enter the OTP and authenticate.
  4. A list of services relating to driving licences will now be displayed. Choose the option that says ‘Change of name in DL’ from the list. Select ‘Proceed’ after checking the declaration box and entering the captcha code.
  5. A form acknowledging receipt of the desired service, such as changing the name on a driver’s licence, will be generated.
  6. Comply with the directions and submit the necessary papers (discussed below). After that, upload your ‘Photo and Signature’ and finish the payment process.

To change your name offline, you must:

  1. Go to your local RTO office and seek clearance from the authorised official to apply for such alterations.
  2. Go to the data entry office to gather data and pay fees at the fee payment location.
  3. Following the aforementioned procedure, authorised officials or representatives will capture biometric signatures, fingerprints, and photos. They will next carefully review the information you submitted.
  4. You will then be given a receipt that you may keep for your records.
  5. You will have the original driving licence mailed to your registered address after all the procedures are finished.

How to change name on your Aadhaar card

An individual must have an Aadhaar for themselves to be an Indian citizen. Additionally, if your name changes, make sure that the information on your current Aadhaar card is checked and updated as necessary. Additionally, the name change record will assist you in updating the Aadhaar name by replacing the old name with a new one. You can get a new Aadhaar by applying for modification of the existing one and sending a copy of the name change record.

Here’s how to update your Aadhaar card’s name online:

  1. Enter your Aadhaar number into the UIDAI’s official self-service website.
  2. Type your first and last names.
  3. Upload supporting papers that have been scanned and self-attested to the official portal.
  4. Your registered cellphone number will receive an OTP. To apply for a name change, enter the OTP. 
  5. UIDAI does not charge a fee for self-service name changes after marriage.

Here’s how you change your name offline on your Aadhaar card after getting married.

  1. Go to the neighbourhood Aadhaar enrollment facility.
  2. You must bring your supporting papers’ original copies to the centre.
  3. A Rs. 50 charge must be paid.

How to change the name on your birth certificate

With time, it becomes less necessary to change one’s or one’s children’s names. Since some of your official documents may already have been issued, changing your name in India may seem like a lengthy procedure. The most significant official document is the birth certificate. It is necessary, among other things, for national tests, medical exams, school transfers, and job transfers. If additional laws and amendments are passed, the list can keep expanding. 

For birth certificate rectification online, the affidavit must be verified by the notary. The municipal corporation may need to confirm specific papers, such as medical records. The cost of the non-judicial stamp paper for the affidavit ranges from Rs. 20 to Rs. 100, and the cost of altering the name on the birth certificate varies from state to state.

The most crucial component before beginning any operation is the documentation. The following paperwork is needed for online birth certificate corrections:

  1. A copy of the ‘Deed Changing Name Form’ from the Department of Publication’s Controller of Publication
  2. A letter of declaration outlining the need for a name change
  3. Original, date-stamped copies of advertisements.
  4. Verified pictures
  5. Proofs of address and identity

How to change the name on your PAN card

PAN card name changes may be necessary for a variety of reasons, including marriage, misspellings of names on PAN cards, name changes, and other situations. Online name changes for PAN cards are feasible, and the process is straightforward and may be completed by filling out the form for PAN Card Name Change Online at Tax Information Network (TIN) or National Securities Depository Limited (NSDL). 

  1. Visit the official website of UTI Infrastructure Technology and Services Limited (UTIITSL) and choose PAN Card Services. 
  2. Then click ‘Change/Correction’ in the PAN Card. Then, from the drop-down box, choose ‘Apply for Change/Correction in PAN Card Details’. You’ll be sent to the PAN Data Application for Change/Correction page.
  3. The last step is to choose between the two options: physical (forward application with physical documents) or digital (forward application with digital documents). Select the digital alternative afterwards (paperless).
  4. Select the drop-down menu’s Aadhaar-based e-KYC option to continue. It then automatically chooses the option to ‘Sign Using Aadhaar-based eSign’.
  5. You must now input your PAN and decide whether you want merely an e-PAN or a physical PAN card with updates.
  6. After that, click the Submit button.
  7. Make the necessary payment and complete the application form with all of your necessary information.
  8. The application will thereafter continue to be processed after undergoing real-time Aadhaar authentication from the UIDAI server.
  9. OTP will be provided to your UIDAI registered cellphone number for e-KYC services. Your address will be filled in on the PAN form using information from the UIDAI database when you enter your OTP and permission in the required box.
  10. The application data must then be verified, together with any additional information, and submitted.
  11. Once you enter the OTP, the application will be signed using an Aadhaar-based e-signature. You will now receive another OTP for e-Sign.
  12. The PAN card name change via Aadhaar application would be kept and continued by UTIITSL.

Name change of a minor

In case a name change procedure needs to be undertaken to change the name of a minor i.e. an individual who has not yet 18 years of age, a slightly different procedure needs to be adopted than the aforementioned one.

The following papers must be submitted in order for your advertisement to appear in the Indian Gazette:

  1. A duly signed undertaking from the guardian of the minor.
  2. The original newspaper containing the ads notifying about the change of name
  3. Properly typed proforma as prescribed in duplicate, containing the applicant’s signature and the signatures of two witnesses; 
  4. A CD containing the print matter without the witness component in MS Word, with the name of the guardian in place of the applicant’s signature.
  5. Two passport-size pictures of each applicant and child that have been self-attested.
  6. A document with the applicant’s proper signature stating that the contents of the hard copy and electronic copy are the same.
  7. A request letter along with the required payment.

The official details of the process may be found here.

Name change after marriage

It is a tradition in India which involves the spouse, majorly the women, changing their name after marriage. The married woman majorly adopts the family name of her husband, and this requires the woman to undertake a full-fledged legal procedure. The process of changing one’s name is more or less similar to the process undertaken otherwise, except for a few variations here and there. The following describes the step-by-step process:

  1. Create the affidavit with the fewest possible details about the married applicant.
  2. Finish the document on stamp paper with the appropriate value. State-by-state variations affect stamp duty rates. The government has set a stamp duty for each legal document, however since e-Stamp Paper was introduced, there is no longer a separate stamp tax for each document. Affidavits can be signed on any quantity of e-Stamp paper. For affidavits, the standard stamp duty amount is Rs. 10/-.
  3. Put your signature there and have a notary public certify it. It is essential yet crucial to get your affidavit notarized by a Notary Public. Getting notarization means receiving documents attested by a Notary Public with their seal and signature, declaring that the signer/deponent is a real original party and has acknowledged the statements.
  4. You just need to provide the Affidavit to the Local Municipality Department, the Children’s School, and other relevant/important papers like the PAN Card, Adhaar Card, Bank Account, etc. to update the information in the other required documents.
  5. In order to legally change your name, you must publish a notice in the Indian Gazette. However, publishing a notice in the Gazette is not required for female applicants. It is not necessary to publish the Gazette Notification if the change just affects the surname.  But, if the change affects the entire name, it is crucial to do so.

Name change after divorce

Similar to how a woman has the option to alter her last name after marriage, she also has the choice, even in the event of divorce, to retain her husband’s name. Some women opt to change their surname as a part of moving on, while others elect to keep their ex-last husband’s name for reasons like sharing a last name with the children. You are free to alter your present last name and get your old last name after a divorce.

The best course of action if your divorce is still pending is to get your name changed while the divorce is still being processed. In the divorce papers, you can ask for a formal name change, and you can even include it in the settlement agreement. Your new name will be reflected in the divorce decree or order if the judge signs the final divorce decree or order approving your legal name change.

If your divorce decision didn’t include returning to your previous name, you’ll need to submit an application for a name change to the gazette. Even if you would technically resume using your maiden name, the law mandates that you alter it by going through the same legal process as mentioned above.

Conclusion

Name changes are a pretty typical occurrence today, and many people do so for a variety of reasons. It should be remembered that once a name has been changed, it takes on legal significance and becomes the person’s identity and legal name. When a person formally changes their name, there are extensive and intricate legal procedures that must be followed. Hence, the aforementioned procedures must be undertaken properly to comply with the law when changing one’s name.

Frequently Asked Questions (FAQs)

What are the major steps to be undertaken to get a name change?

There are three main steps that need to be undertaken, which are submitting an affidavit, then getting an advertisement in two newspapers notifying the change in name,  and lastly,  publishing it in the Gazette of India. 

Do married women have to go through this procedure in order to change their last name to that of their husbands?

Yes, married women can alter their names using the same procedure as everyone else. Married women need just provide a few more details, such as:

  • Old name with the address and name of the father
  • A new name with the address and name of the husband
  • A copy of the marriage licence or an ID with the husband’s name on it

Does changing my name need any witnesses?

Yes, two witnesses are required for the name change procedure. Additionally, you must supply one identity document for each witness.

What should I present after legally changing my name in order to update it on vital documents?

Once your name has been legally changed, you must update it on all important papers. You must present copies of the affidavit, the newspaper article, and the gazette notification in support of that.

What details must be included in the name change affidavit?

You must ensure that relevant information, including your old and new name, address, and the reason the name was changed is included in the name change affidavit:

What constitutes the primary causes of name changes in India?

Marriage, divorce, disliking the existing name, numerology, religious considerations, political circumstances, change of gender, and

What is the eligibility for changing one’s name?

In India, changing one’s name is fairly frequent and is done for a variety of reasons. The only requirement for changing one’s name is that the applicant is at least 18 years old. A minor applicant may also alter his or her name, but in that instance, the minor child’s parents must complete the process on their behalf.

How much time does the publication in the Gazette of India take?

It depends on both the applicant’s application and the department. It will take less time if the documents that are attached are accurate. The Notification can be obtained from the e-gazette website at http://egazette.nic.in after it has been published.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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GST Amendment Act

By
Sneha Mahawar
-
0

This article has been written by Nimisha Dublish of Vivekananda Institute of Professional Studies, GGSIPU, Delhi. The article aims to explain the GST Amendment Act along with the amendments made and suggested by the GST Council of India.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Before 2017, India was a country where there were several direct and indirect taxes imposed on its citizens. The payment of several indirect taxes makes it a hectic process for each individual involved in regular economic activities. The Goods and Services Tax (GST) was introduced to address this issue and close the possible loopholes in the tax system. To bring down corruption, the Goods and Services Tax (GST) was introduced. It brought the Indian market under the umbrella of 1.3 billion citizens. The solo indirect tax of GST brought and subsumed several taxes like Value Added Tax (VAT), Excise Duty, Central Sales Tax (CST), etc. into one single tax. The establishment and introduction of GST was one of the biggest game changers for businessmen and manufacturers and helped them eliminate the tedious process of filing multiple taxes. Along with this reduction of tax evasion and corruption by adopting one tax regime i.e., GST helped bring more tax collection transparency. As a result, enhanced and increased government revenue by widening the tax base and Gross Domestic Product (GDP). 

However, there remained many problems that the manufacturers and businessmen faced. Some of these were related to the GSTN Portal, filing of monthly returns, GST slabs, etc. People managed to find loopholes and new methods of tax evasion, which in turn decreased the government’s revenue. In this article, we will be going through the history and constitutional amendments made to the Act. We will be discussing the GST Council and the power it holds in GST-related matters.

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History of Goods and Services Tax

Vishwanath Pratap Singh, Finance Minister in Rajiv Gandhi’s government, initiated the reform of the indirect tax regime in the year 1986. The regime started with certain modifications to the Value Added Tax, and hence the Modified Value Added Tax (MODVAT) was introduced. Further, Finance Minister Manmohan Singh, under the leadership of P.V. Narasimha Rao, initiated state-level discussions on VAT. Consequently, the Goods and Services Tax (GST) Bill was proposed in 1999 and was given the go-ahead by then Prime Minister Atal Bihari Vajpayee along with former RBI governors Bimal Jalan, I.G. Patel, and C. Rangarajan. In order to design the GST model, a committee was set up, which was headed by West Bengal’s Finance Minister, Asim Dasgupta. 

In 2002, the Prime Minister formed a task force for the recommendation of tax reforms. As suggested in the 12th Finance Commission, the Committee recommended the rollout of GST. The newly elected Finance Minister, P Chidambaram, proposed to roll out GST in the year 2010. The 115th Constitution Amendment Bill was introduced by the United Progressive Alliance (UPA) in 2011 to bring in the GST. However, it was opposed and then recommended to the Standing Committee led by the BJP’s former Finance Minister, Yashwant Sinha.  

In 2014, the bill was reintroduced and it got the majority of votes under the BJP government. In 2015, a final deadline for the year 2017 was set by Arun Jaitly. However, the Constitution Amendment Bill faced critical opposition as well, but in 2016, it was finally passed and President Pranab Mukherjee gave his assent. The GST Council approved the Central Goods and Services Tax (CGST) Bill, Integrated Goods and Services Tax (IGST) Bill, Union Territory Goods and Services Tax (UTGST) Bill, and Goods and Services (Compensation to States) Bill, which were passed by the Lok Sabha on 29 March 2017. Subsequently, the Rajya Sabha also passed the bills on 6th April, 2017 and was enacted on 12th April, 2017. 

After proper enactment of all the laws, the (GST) was launched nationwide on 1st July 2017. At midnight of 1st July 2017, the President and Prime Minister collectively launched the GST. The Goods and Services Tax (GST) subsumed 17 central and state taxes and created the market for a $2.4 trillion economy with 1.3 billion citizens under one common umbrella. More than 160 countries worldwide have implemented GST. India adopted a dual GST system while many countries have a single GST system. GST was introduced with the slogan of “One Nation, One Market, One Tax”. 

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Constitutional amendments for Goods and Services Tax 

Constitution (101st Amendment) Act, 2016 was introduced to make amendments in the Constitution of India for GST. Since the tax was to be levied on both a central and state basis, it was necessary to introduce constitutional amendments to maintain consistency across the centre and state.

Certain articles were amended and altered in order to suit the provisions of GST legislation.  The applicability and scope of GST laws were introduced, along with the delineation of powers to make GST laws. The constitution defined the powers and duties of the GST Council of India. The following were the major changes as per the Amendment Act.

Special provisions under Article 246A 

Insertion of Article 246A of the Constitution of India gave powers to the State and Union Legislatures, along with Parliament, to make and amend GST laws as imposed by them. Parliament is given a special power over the states to make laws as per inter-state supplies. The IGST Act deals with the inter-state supplies of the country. Petroleum crude, high-speed diesel, motor spirit, natural gas, and aviation turbine fuel were excluded from the article till the time recommended by the GST Council.

Levy and collection of GST under Article 269A 

Article 269A of the Constitution of India describes the manner of revenue distribution from  inter-state supplies between the centre and state. The GST Council is empowered to frame the rules in this regard. IGST is levied on import transactions. With the help of IGST, taxpayers are enabled to avail of the IGST credit which is paid on imports through the supply chain. This was not possible before the enactment of GST laws.

Distribution of taxes between the Union and states under Article 270

Article 270 majorly deals with the distribution of revenues between the Union and states. After the amendment of this Article, certain new clauses were inserted. Sub-Clause 1(A) and 1(B) were inserted after the amendment. Article 270(1A) says that the tax collected by the Union as per Article 246(A)(1) is to be distributed between the Union and States as prescribed in clause 2 of the said Article. Article 270(1B) was introduced to make sure that a certain amount of tax as mentioned in the Article should also be distributed between the Union and States in the same manner as provided under clause 2.

Powers of GST Council under Article 279A 

The powers of the GST Council are given under Article 279A of the Constitution of India. The GST Council comprises a joint forum of the Centre and States formulated by the President of India. The GST Council works for the enactment, procedures, modifications, and procurement of laws related to GST.

Composition of the GST Council

The Article says that the President shall constitute a GST Council within 60 days from the date of commencement of the Act. The composition of the GST Council is as follows:

  1. Chairperson- Union Finance Minister.
  2. Member- Union Minister of the State in charge of finance.
  3. Members- Ministers nominated by the state government.

Powers and functions performed by the GST Council

The Article further provides with the functions performed by the GST Council. The Council can make recommendations to both the union and the states on the following issues and matters:

  1. Taxes, cesses, and surcharges levied by the Union, states and local bodies.
  2. Goods and services may be exempt from the GST collection.
  3. Model of the GST Laws and the principles governing the place of supply.
  4. The threshold limit of turnover for goods and services that may be exempt from the GST regime.
  5. The floor rates of GST.
  6. Special GST provisions for the states of Arunachal Pradesh, Assam, Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, Himachal Pradesh and Uttarakhand.
  7. Matters relating to GST as the Council may decide.

Dispute resolution mechanism

The Council can make a mechanism for the purposes of dispute resolution as per the recommendations of the Council and implement it. The mechanism can be built between the government and one or more states; between the government and any state or states on one hand and one or more states on the other; or between two or more states. 

Amendment of Article 286 

Article 286 restrains the states from making laws for the imposition of any kind of tax, either on the sale or on purchase of goods. After the amendment of this Article, the words ‘sale or purchase’ were replaced with the word ‘supply’ and the word ‘goods’ was replaced by the words ‘ goods or services or both’. As stated, the states have no authority with respect to the imposition of GST on inter-state supplies of goods and services or both. The same shall be levied by the Union Government under Article 269A as per the Amendment Act.

Amendment of the existing Article 366 

The definition of ‘Goods and Services Tax (GST), Services and State’ was included in Article 366 by way of an amendment to the Constitution of India.

The Goods and Services (Compensation to States) Act, 2017 included a provision to give relief to the states if they face revenue loss due to the enactment of GST. However, it had a validity of only 5 years from enactment. 

Amendments to the Sixth Schedule

The Sixth Schedule was amended and certain provisions were inserted for the administration of the tribal areas in the states of Assam, Mizoram, Meghalaya and Tripura. After the amendment of the schedule, the district council is given power to levy and collect taxes. Taxes on professions, trades, callings, and employment were also levied. The schedule also dealt with the administration of taxes with respect to animals, vehicles, and boats.

Seventh Schedule Amendments

The seventh schedule of the Constitution contains three lists. The lists deals with the matters as provided under the heads of Union, state and concurrent. 

  • List 1, which is the Union List, contains the matters on which Parliament or the Central government has the exclusive right to make laws. 
  • List 2, which is the State List, has the matters pertaining to the state government upon which they have exclusive right to make laws. 
  • List 3, which is the Concurrent List, deals with the matters in which the Central and State have the joint power to make laws.

Amendments to this schedule were made in order to pass certain entries related to the duties of excise, the sale of petroleum, high speed diesel, motor spirit, natural gas, etc. 

Amendment to the CGST Act, 2017

Amendments to the CGST Act, 2017 took place, which was to be applicable from 1st January 2022. The following were the amendments that took place:

Conditions and eligibility criteria to claim Input Tax Credit (ITC)

Section 16(2) of the Act was amended and a new clause (aa) was inserted. The said clause stated that only those suppliers who have given details of the invoice in the form GSTR- 1 would be eligible to claim the ITC of the same. The communications to the recipient should be mentioned in form GSTR- 2A or GSTR- 2B is still ambiguous. 

Determination of tax

Section 73 and Section 74 of the Act deal with this matter. Any proceedings that are undertaken with respect to Section 129 and Section 130 shall be independent and separate. Section 129 deals with the E-Way Bill, and Section 130 discusses the non-compliance provisions. For example, if the action has been initiated in relation to the violation of the E-Way Bill, then the same shall be continued and considered as independent proceedings from the other matters. 

General provisions to determine taxes

An explanation of the definition of tax details has been inserted in Section 75 of the Act. Tax details that have been provided by the supplier shall be treated as Self Assessed Tax only in the form GSTR- 1. This insertion has imposed restrictions on the malpractice that has been followed to escape the tax liability.

Provisional attachment for the protection of revenue in specific cases

Section 83 of the Act discusses the required provisional attachment for the purpose of protecting the revenue in certain cases. After the amendment, the power of provisional attachment of property under Section 83 has expanded. The powers have been expanded to include proceedings that are undertaken under Chapter XII, Chapter XIV, or Chapter XV of the Act. Chapter XII deals with assessment; Chapter XIV deals with inspection, search, seizure and arrest and Chapter XV deal with demands and recovery.

Appeals to the Appellate Authority

Under Section 107 of the Act, the taxpayers are to pay 25% of the penalty as a part of the pre-deposit. This is applicable in cases where an appeal has been filed for detention, seizure of goods, or conveyance. 

Procedures related to detention, seizure of goods, and conveyance

Section 129 of the Act dealt with the detention, seizure, and release of goods along with conveyances in transit. Changes have taken place in the procedures after the amendment Act. A penalty of 200% of tax has been imposed and it shall be payable when the owner of the goods comes forward for the payment of said penalty. Earlier, the rate was 100% and now it has been increased to 200% of the tax. In case the good’s owner doesn’t come up then the same shall be released after making a payment of 50% of the value of goods or 200% of tax payable. Earlier, there was an option to furnish the security or the bond for releasing goods, which has now been removed. 

Confiscation and penalties for goods or conveyances

Both Section 129 and Section 130 dealt with the procedures and penalties associated with the confiscation of goods. However, the powers of confiscation have been limited in certain cases. 100% penalty in the case of confiscation of goods in specific cases. 

Power to call for information and Bar on disclosure of information

The scope has been widened to include a call for information. Section 152 of the Act makes some procedural changes in the provisions pertaining to the disclosure of information. No information shall be disclosed without giving the opportunity for a personal hearing. Section 152(2) has been omitted from the Act. 

47th GST Council Meeting

The meeting took place on 28th June 2022 and 29th June 2022 at Chandigarh. The meeting took place under the chairmanship of the Union Finance and Corporate Affairs Minister to decide upon the recommendations made by the Group of Members (GOM) with respect to casinos, racecourses, online gaming and other issues to adopt the imposition of GST on them. 

The following were the pointers that were taken into consideration and were discussed for implementation:

Trade facilitation

  • Waiver to be provided to the requirement of mandatory registration for a person supplying goods. This includes the suppliers who supply the goods through ECOs as per the conditions. 
  • In case of supplies to the Special Economic Zone (SEZ) Units, there shall be a clarity clause inserted in the Act to give clarity on the status of the specified officer. The term ‘specified officer’ shall mean the same as an authorised officer and shall be included as per the provisions of SEZ Rules, 2006.    
  • To make intra-state supplies through the way of e-commerce, the composition of taxpayers shall be allowed subject to certain conditions recommended by the Council and the law-makers.
  • Amendments in CGST Rules pertaining to the refund of unutilised ITC on account of the export of electricity. There shall be no requirement for the exempted supply of Duty Credit Scrips by the exporter to reverse the input tax credit. 
  • Departing international travellers who bought domestic items from Duty-Free Shops (DFS) in the international terminal will have their GST reimbursed as a result of DFS treating their purchases as exports.
  • Limitation under Section 73 of the GST Act for the issuance of directives in relation to other demands associated with the annual return due date will be extended until September 30, 2023.

GST rates of goods and services and clarifications upon them

  • A concessional rate of GST of 5% for electric vehicles with or without battery packs.
  • Entry 9B of the notification deals with the exemptions granted to the services related to the transit of cargo to and from Nepal and Bhutan.
  • A concession of 5% GST is to be given to advertisements published in the form of books or souvenirs. 
  • Guest anchors on TV channels who are given an honorarium for their services are also affected by the implementation of GST.
  • Activities such as Assisted Reproductive Technology (ART) and In Vitro Fertilisation (IVF) come under the healthcare sector of India and hence are exempted from GST. 

GST Rates effective from 18th July 2022

Inverted Duty Structure on goods and/or services (rate rationalisation)

S. No.Subject detailsPrevious ratesNew/Amended rates
1.Lights (LED lamps) and fixtures for such products.12%18%
2.System of Solar water heater and its parts.5%12%
3.Working road contracts, bridges, railways, metros, etc.12%18%

Tax rate changes in goods and/or services

S. No.Subject detailsPrevious ratesNew/Amended rates
1.Ostomy appliances12%5%
2.Contracts for roads, bridges, metros, etc.12%18%
3.Splints, fracture appliances, artificial body parts, and others come under the category of orthopaedic appliances.12%5%
4.Cuts and polished pieces of diamonds.0.25%1.5%
5.Ropeways as a mode of transportation18%5%
6.Trucks or carriage loaders for the purpose of renting (including fuel).18%12%

Rationalised exemptions on goods and/or services

S. No.Subject detailsPrevious ratesNew/Amended rates
1.Technical and scientific types of equipment received by public-funded institutes of research.5%Applicable rates
2.Electronic waste.5%18%
3.Room accommodation at a hotel up to Rs. 1000 per day.–12%

Conclusion

In a country like India, bringing change is a tough task. It is never easy to accept the changes, let it be in lifestyle, economic reforms, social reforms or tax regime. In a country of 1.3 billion people, the implementation and development of GST reforms will never be a cakewalk. To bring in amendments to existing reforms, lawmakers must keep in mind the related problems and consequences. There is always scope for the development and enhancement of GST laws for its successful implementation and to bring in a unified tax system. This acts as an advantage because there will be easy input credits, reduced compliance, and a single market with the hassle-free movement of goods.

Frequently Asked Questions (FAQs)

Who is the father of GST?

The committee for the formation of GST has been headed by the former Prime Minister of India, Atal Bihari Vajpayee, who further set up a committee headed by the Finance Minister of West Bengal. 

Which state ratified the GST first?

Assam was the first state to ratify GST in India. 

What are the three types of GST?

The three types of GST are CGST, SGST, and IGST. This helps in dividing the inter-state and intra-state supplies in India. 

On which day was GST implemented in India?

The GST was implemented in India on 1st July 2017.

Who is the chairman of the GST Council?

Current Finance Minister Nirmala Sitaraman is the chairman of the GST Council, which is the governing body for GST management and related laws. 

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

Download Now

How to prevent cyber crime

By
Sneha Mahawar
-
0
Image source- https://theconversation.com/why-international-law-is-failing-to-keep-pace-with-technology-in-preventing-cyber-attacks-111998

This article is authored by Nidhi Bajaj, pursuing BA.LLB from Guru Nanak Dev University, Punjab. In this article, the author has provided various precautionary steps that an individual can take to avoid falling victim to a cybercrime. Along with the major types of cyber crimes, we will also be looking at the various legal remedies for the same. 

This article has been published by Sneha Mahawar.

Introduction

In simple words, cyber crime means any criminal activity related to the use of a computer. Lately, there has been increased and rapid digitisation in the economic, commercial and other spheres due to which the dependence on the internet and technology has become a necessity- a condition that we cannot ignore anymore. While this could mean ease of doing business and a comfortable and convenient way of living, it also means increased risk to one’s privacy and other things including confidential information and secrets which we hold dear. Someone might trace your location or other personal information from your social media(whether you intend it or not) and then use it to blackmail or threaten you to do something, for instance transferring funds to some remote account. Cybercrimes such as hacking, cyber terrorism and online frauds have the potential of shaking economies and ruining individual lives. The question arises as to what one can do to avoid becoming a victim of cyber crimes. In this article, I will be taking you through the various steps and precautions that you can take to avoid cyber crimes. While there is no full-proof way to avoid these crimes, it is noteworthy that the Information Technology Act, 2000 and the Indian Penal Code, 1860, and other laws provide for the mechanism to punish and penalise cyber criminals. Therefore, whenever you find yourself in the trap of a cybercriminal, you must report the crime to the appropriate authorities. 

What is cybercrime

Cybercrime involves the use of a computer to further illegal ends. In other words, cybercrime refers to any criminal activity that either targets or uses a computer, a computer network, or a networked device. Thus, a computer may be used in the execution of the crime or it may be the target. One may say that cybercrime is an extension of traditional criminal behaviour. Cybercrime does not attack you physically and its non-local character makes it different from other types of crimes. A person sitting in the U.S.A may commit a cyber crime through his computer by accessing another computer in India. The scope of cybercrime usually extends to more than one jurisdiction which creates problems for law enforcement thereby calling for international cooperation. 

Major types of cyber crimes

Cybercrime may be committed:

  1. Against an individual (For example, threatening emails, cyber stalking, defamation, cheating, email spoofing, cyber fraud, etc.);
  2. Against property (For example, internet thefts, software piracy, copyright infringement, internet thefts, computer vandalism, etc.);
  3. Against governments or organizations (For example, cyber terrorism, distributing pirated software, unauthorized control over computer systems);
  4. Crime against society (For example, child pornography, online gambling, web jacking, forgery, trafficking, sale of banned products online, and financial crimes).

Following is a list of the major types of cyber crimes:

Identity theft

As the name suggests, identity theft means stealing someone’s identity to make unlawful gains. It happens when someone uses your personal identifying information to commit fraud, make unauthorised purchases in your name, uses your credit card, and the like. Section 66C of the Information Technology Act, 2000 provides the punishment for identity theft.

Phishing

Phishing attacks attempt to steal your money by getting you to disclose your personal information such as bank details and passwords. The cybercriminal sends you a message or an email containing the link to a phishing website. These messages appear to be from a legitimate source and the cyber criminal pretends to be from a reputed company, bank, etc. A typical feature of a phishing attack is the urgent call to action or threat. Phishing emails create a false sense of urgency by telling the target that he must click, open the link, and attach it immediately. Once you’re on the phishing website, you are asked to update your information such as a password or fill in your account details, etc. Phishing can be of various types such as vishing(voice phishing), smishing(SMS phishing), URL phishing, email phishing, etc. Sections 43 and 66 provide punishments for phishing and related offences.

Social engineering

Social engineering attacks are conducted by exploiting human errors and behaviours to perpetrate a cyber attack. Social engineering means manipulating someone to reveal confidential or sensitive information, usually through digital communication and using the same for fraudulent purposes. Since it takes advantage of human vulnerabilities for unlawful ends, it is also called human hacking. For example, a cybercriminal impersonating an IT professional contacts you under the guise of updating your security software. Such cyber criminals build trust with their targets, collect their personal information, commit the attack, and depart. Some of the common social engineering attacks include baiting, too good to be true schemes, phishing, email hacking, etc.

Cyberstalking

Cyberstalking is the same as stalking, the only difference being that cyberstalking is committed online. It is the persistence, unwanted contact with a person on the internet through social media, email, etc. The crime of cyberstalking often involves other criminal acts including harassment, blackmail, defamation, and threats. Section 354D of the Indian Penal Code, 1860 deals with the offence of stalking and is invoked in cases of cyberstalking as well. The various types of cyberstalking include:

Email stalking

Sending unsolicited emails persistently is one of the most common forms of cyber stalking. The cyber criminal sends obscene or threatening emails to the victim and these mails may also include viruses and links to fake or harmful websites. In order to constitute the offence of stalking, the element of persistent unwanted communication which has the potential to intimidate the victim should be there.

Internet stalking

This means stalking on the internet. The cyber criminal stalks your social media by creating a fake profile and might send you messages persistently or create a fake ID in your name on any social media platform along with your contact details. Cyber criminals take advantage of the anonymity of the internet to slander their victims and threaten them.

Computer stalking

Here, the cyber criminal exploits the working of the internet and operating system to assume control over the computer of the targeted victim. As soon as the target computer connects to the internet, the cybercriminal can communicate directly with his victim.

Cyber fraud

Cyber fraud means any fraud committed by using a computer as a means or a target to gain an unlawful financial advantage. Internet fraud is any fraud committed through or with the aid of computer programming or internet-related communication such as websites, emails, and chat rooms. In today’s digital world, all payments and other financial transactions take place online. Thus, cyber fraud has become a lucrative business for cybercriminals. These frauds include misuse of credit cards by obtaining passwords through hacking, bogus investment, and misappropriation and transfer of funds. The various legal provisions invoked in case of cyber fraud include Section 420 and Section 408 etc.

Forms of computer fraud

  1. Input fraud: It involves the falsification of data before or at the moment of its entry into the computer. For example, misuse of cash dispensing cards.
  2. Output fraud: This involves the fraudulent manipulation of data at the point it is outputted from the computer. For example, forging paychecks.
  3. Programme fraud: It involves either the creation of a program with a view to fraud or the alteration or amendment of a program to such ends. For example, Salami fraud.

Hacking and Cracking

Hacking refers to unauthorised access to or control over a computer network for illegal purposes. Hacking is committed by releasing viruses, distributing Denial of Service(DoS) attacks, email hacking, web hijacking, etc. Section 43 of the IT Act, 2000 deals with the offence of hacking. Typical features of the offence of hacking are as follows:

  1. The hacker gains unauthorised access to the target computer.
  2. Such unauthorised access or control is for illegal purposes such as making unlawful gains or causing wrongful loss or damage to any person.
  3. The hacker intends to cause wrongful loss and damage or he has the knowledge that he is likely to cause such loss or damage.
  4. The hacker deletes, destroys or misuses, or alters any information residing in the target computer.
  5. The hacker destroys or diminishes the value or utility of the information residing in any computer resource.      

Cracking is a technique used to breach computer software or a device’s security system with malicious intent. Cracking is simply malicious hacking. It involves password cracking, software cracking, network cracking etc. for stealing data, damaging a system, spreading malware and for committing corporate espionage.    

Cyber defamation

Cyber defamation can be broadly defined as any act, deed, word, gesture, or thing on the internet or concerning cyberspace that is designed to harm a person’s reputation or goodwill on the internet with a malafide intention so that others in the community, whether online or offline would view the person with ridicule, hatred, contempt, indifference or any other negative attribute. For example, posting vulgar pictures of a person on social media without his consent, creating fake accounts in someone’s name, sending obscene messages to his friends and relatives, etc. Thus, cyber defamation refers to defaming a person online or in cyberspace. It is noteworthy that word travels like light in cyberspace and the defamatory content reaches millions in a matter of seconds. Hence, defamation in the context of cyberspace has become a serious concern. Sections 499 and 500 of I.P.C. deals with defamation.

Section 66A of the Information Technology Act, 2000 provides punishment for sending offensive messages through communication services, etc. However, the said Section was struck down as unconstitutional by the Supreme Court in the case of Shreya Singhal v. Union of India(2015) on the ground that it violates the right to free speech and expression. 

Cyber pornography and cyber obscenity

Cyber pornography is a serious offense that is punishable under the Information Technology Act, 2000. Cyber pornography is the publication, distribution, or designing of pornography through cyberspace. The IT Act, 2000 provides punishment for publishing or transmitting material containing sexually explicit acts or conduct or depicting children in sexually explicit acts or conduct under Sections 67A and 67B respectively. 

Cyber obscenity refers to the publishing or transmission of obscene material in electronic form. Section 67 of the IT Act, 2000 punishes the publication or transmission of any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

Cyber vandalism

Cyber vandalism refers to a cyber attack without any rational, criminal or political or other motive. It is usually done to show off the hacker’s prowess and involves hacking into or defacing a website, intentional destruction of digital objects, posting fake reviews, adding content and removing content, etc.

Protecting yourself from cybercrime

Mentioned below is a comprehensive list of tips and measures that an individual can take to protect themselves from cybercrime:

Use strong passwords

One of the simplest ways to prevent cyber crimes is to use strong passwords. Don’t go for 123456…and other simple passwords that are too easy to guess. Don’t use the names of your partners or dear ones or your birth date as your password. Instead, use a unique password that is a combination of alphabets, numerals, and special characters/symbols. Another trick is to use different passwords for different sites and change your passwords frequently.

Keeping your software updated

Keep checking for the updates for your operating system and internet security software. Generally, cybercriminals take advantage of the glitches and flaws in your software for gaining access to your systems and devices. Thus, keeping your software updated to the latest version takes you one step closer to preventing cyber crimes.

Manage your social media settings

The next easy thing that you can do is keep your personal information private. Social media platforms usually have a feature where that allows you to hide your phone numbers and other contact/personal information. It might be a reasonable choice to hide such information and keep it locked down from the public eye for if you disclose your pet’s name in your public profile, you are giving away the answer to one of the most basic security questions.

Strengthening your network

Use strong encryption passwords to protect your home network from hackers and unwanted interceptions. If you are someone who uses public WI-FI, you must use a VPN(Virtual Private Network). A VPN encrypts all traffic until it reaches your computer. Thus, even if hackers can hack your communication line, they won’t intercept anything but encrypted data.

Keep yourself up to date on major security breaches

We often read about security breaches and theft of user information stored by various websites. If you have an account on any of these websites which have been impacted by the breach, you should check out what information the hackers have accessed and change your passwords immediately.

Talk to children about the internet

Even before the pandemic happened, children were already using the internet and mobile, and computer devices to a great extent and the pandemic only intensified it. The internet and technology have become a necessity in a student’s life. But do we teach our kids about the pros and cons of the internet? Every parent must talk to their child about the cautious use of the internet and the risks that come with it. Essentially, you must make sure that your child comes to you if he or she is experiencing any form of online harassment, abuse, or any other cyber-criminal activity.

Protect yourself from identity theft

You can protect yourself from identity theft by taking the following precautions:

  • Beware of shoulder surfing.
  • Do not reply to spam emails or open URLs or click on links in unsolicited mails.
  • Use robust passwords and practise safe clicking.
  • Always verify the identity of the person asking for your personal information.

Install anti-virus software

Installing reputed anti-virus software or internet security solutions can go a long way in protecting you from cyber crimes. These softwares such as avast provides you maximum protection and contains features such as virus cleaner, VPN, app locks, monitoring leaked passwords, etc. Anti-virus software allows you to scan, detect and remove threats before they become a problem. Also, please make sure that your antivirus software is kept updated.

Check your bank statements

It is advised that you should regularly check your bank account statements and in case you notice some unfamiliar transactions, or unauthorised withdrawals, you can report the same to the bank.

Protect yourself from phishing

The first thing you can do to avoid a phishing attack is to learn to recognize it. Here’s how-typically, phishing attacks call for an urgent action prompting you to click some link or act immediately to claim this lucrative reward and so on. Here are the other things that you can do to avoid becoming a victim of phishing attacks:

  • A mail from a first-time sender might be a sign of phishing. Therefore, be extra cautious when you receive mail from an unknown person.
  • If the mail you got has bad grammar and obvious spelling errors, there is a good chance that it is a scam. This is because these emails are usually translated into foreign languages. Also, reputed organisations do not generally send emails with spelling errors.
  • Beware of generic greetings. In the time we live in, organisations that you deal with know your details and they usually address you with your name. Thus, if you receive a letter with a generic greeting ‘Dear mam or sir’ from your bank, there is a chance that it is not your bank after all.
  • If you suspect that you have received spam mail, or that the email message is a scam, avoid clicking any links that may be inside it.

Other tips

  • Don’t share your location on social media publicly
  • While making online purchases, ensure that the website is legitimate and uses a secure e-payment facility or portal.
  • Do not share your OTP, and CVV codes with anyone. Trusted banks and financial institutions will never ask for this information.
  • Always follow the industry best practices and government recommended practices and measures on cyber security.
  • Keep your company’s software, hardware, and digital assets up to date using proper IT security asset management.
  • Do not accept all the cookies from all websites that you visit. Read the terms and conditions carefully before accessing a website.
  • Make an effort to check the credibility of an app before downloading it.
  • Do not permit apps and websites access to your location unless necessary.
  • Understand the nature and importance of the data that you store on your devices. Creating a backup of your data and files is a good option to mitigate the loss in case of a malware attack etc.
  • Enabling multi-factor authentication is another option that you can explore to level up your security.
  • Setting and modifying transaction limits on your accounts and cards.
  • Be careful while you make payments on the internet. Enter your Card Verification Value(CVV) only on secure payment websites.
  • Don’t fall into the trap of fake lotteries scams or get-rich-quick schemes.

What to do if you become a victim : reporting a cybercrime

If you find yourself in the clutches of a cybercrime, you must report it to the cybercrime cell. You can register a complaint with the cyber crime cell, both in physical and online mode. In case you don’t have access to a cyber crime cell, then you can lodge an FIR in the nearest police station.

National cyber crime reporting portal

You can file a cyber complaint through the National Cyber Crime Reporting Portal i.e. https://cybercrime.gov.in. The portal also provides the facility of filing anonymous complaints regarding cybercrime related to child pornography and sexually explicit content. To file a complaint, you have to give details of the incident such as the category of cybercrime, date and time, a platform where it occurred, upload evidence and details of the suspect, etc. 

Legal remedies for cyber crimes

Provisions under the Information Technology Act, 2000

The Information Technology Act, 2000 provides for the penalty by way of damages that shall be paid in case of damage to a computer, computer system, etc. Furthermore, Chapter XI of the said Act contains provisions regarding the punishment for various cyber crimes. 

Section 43Penalty and compensation for damage to a computer, computer system, etc.
Section 65Tampering with computer source documents.
Section 66Computer-related offences.
Section 66BPunishment for dishonestly receiving stolen computer resources or communication devices.
Section 66CPunishment for identity theft.
Section 66DPunishment for cheating by personation by using computer resources.
Section 66EPunishment for violation of privacy.
Section 66FPunishment for cyber terrorism.
Section 67Punishment for publishing or transmitting obscene material in electronic form.
Section 67APunishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form.
Section 67BPunishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form.

Relevant provisions under the Indian Penal Code, 1860

Often, the provisions of the Indian Penal Code, 1860 also get attracted in a cybercrime case. These provisions are enumerated below:

Section 292Sale, etc., of obscene books, etc.
Section 354CVoyeurism
Section 354DStalking
Section 379Punishment for theft
Section 408Criminal breach of trust by clerk or servant
Section 411Dishonestly receiving stolen property
Section 419Punishment for cheating by personation
Section 420Cheating and dishonestly inducing delivery of property.
Section 465Punishment for forgery
Section 468Forgery for the purpose of cheating.
Section 469Forgery for the purpose of harming reputation.
Section 500Punishment for defamation
Section 506Punishment for criminal intimidation
Section 509Word, gesture or act intended to insult the modesty of a woman.

Conclusion

The Information Technology Act, 2000, along with the I.P.C. provides stringent punishments for committing various categories of cybercrimes. Various initiatives have been taken by the government such as issuing advisories regarding cyber threats and setting up of Cyber Swacchta Kendra, etc. Cyberspace is very vast and knows no bounds. The internet offers anonymity to offenders and often it is very difficult to impossible to trace a skilled cyber offender. Thus, people have to be aware of their digital surroundings just as they are in the real world. This article has provided tips and measures that an individual can take to protect himself from cyber crimes and mitigate the risks associated with them.

References

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Guide to getting a software patent in India

By
Rachit Garg
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0

This article has been written by Bikramjit Chatterji, pursuing a Diploma in How to Get A Law Firm Job from LawSikho. It has been edited by Ojuswi (Associate, LawSikho).

This article has been published by Rachit Garg.

Introduction 

In the last decade, India has witnessed an explosion in the software industry and an ever-rising growth in terms of technological advancements. This has made it very essential to protect the intellectual property in these programs, software and machines which are using these software and programs. The software is like the brain of the system which commands the operations of the system, which are intangible in nature. However, the software is very different from goods that we see on a day-to-day basis which is why treating them like traditional goods are not justified. Unlike other goods, especially the traditional ones, when a software is sold to a customer, the customer gets the license to use that software but the use has its limitations. The software can be used only for a certain period of time, which these software companies decide. There are some specific do’s and don’ts which are set by the licensor for the licensee. 

Software, computer programs and mobile programs face very severe competition in the market and the developers are quite often vulnerable to suffering losses because people might use this software without paying the remuneration for them. There is also a risk of the software getting copied and pirated which means that people pirating them can sell them at a lower price or offer them for free, leaving the developers at a disadvantage. 

On top of that, due to the cutthroat competition in the market, there is often a risk that the competitors might introduce better versions of current software making the old ones obsolete and outdated. 

So, the protection of the software by getting a software patent doesn’t just protect the economic interests of the software developer but also promotes innovation and creativity among the upcoming software developers of India.    

Protecting intellectual property rights to a software

When we talk about software licensing, the two things that automatically come to the minds of experts are copyright and patents, which are the two well-known methods of protection for intellectual property. Copyright is one of the most common methods of protecting software programs because writing source codes or programs are quite similar to writing a literary piece. A patent is one of the best ways to protect intellectual property but the process is not that easy, especially in India. There is a stringent criterion that needs to be fulfilled in order to get a patent for software. Firstly, the patent can only be granted to something new, which means it cannot be something which is already discovered and in use. Secondly, it needs to be an inventive solution and lastly, it needs to have industrial applicability.  However, despite going through a lengthy process of getting a patent, there is always the risk of infringement and piracy of the software, thanks to the new digital world. 

With such advanced technologies and programs, it is possible to copy the whole code of the program in just a few minutes. On top of that, copyright protection does not necessarily mean that it will protect the process, procedure or discovery of a program or software. In general, novelty, non-obviousness and industrial usage of the technology are the parameters which are seen before granting a patent to an invention, however, computer software and algorithms fall in a different category altogether. Patent laws create an exception when it comes to mathematical formulas, scientific discoveries and algorithms. 

Coming to India, the software is not directly patented and a patent is granted if it is attached with novel hardware which means that it is a unique invention and is capable of industrial usage. 

According to the RBI’s annual survey, the export of India’s software services increased to more than $108 billion in 2017-2018 from just $30-40 million in the 1990s. It is expected to grow to 227 billion dollars in the year 2021-22. Considering this amazing expansion and growth of the software industry, the Intellectual Property laws need to be amended, in order to keep up with the modern day because the last time Intellectual Property Laws were amended in India was in the year 2005, which is 17 years back. 

Due to the age-old Intellectual Property Laws, there is a huge need gap in the laws and there are no laws that deal exclusively with software and computer programs. Software is protected under patents, copyrights and sometimes under trade secrets. 

Even though there are legal provisions for Intellectual Property protection, India still lacks behind because of the lack of developed jurisprudence, due to which the American approach is applied the majority of the time, when dealing with cases related to intellectual property, especially infringement of intellectual property. Even the amended Information Technology Act of 2008 doesn’t specifically talk about the protection of software and computer programs.   

Copyright of softwares

Section 2(o) of the Copyright Act, 1957 states the following phrase: “literary work” which includes computer programmes, tables and compilations. However, there is no mention of source codes, object codes and executable codes in the Copyright Act, 1957. All of these are integral parts of software but they are just covered under literary work in the Copyright Act, 1957. 

But for a software or computer program to be granted copyright protection, it is very important that the software or computer program in question is an original one. In the general context, the owner of a copyright is the author of the work. But in case an employee develops something during their tenure in a company, the employer becomes the owner of such work which applies in the case of the development of software and computer programs as well. However, the employee can be the owner, if the contractual terms between the employer and employee are different. The owner of a copyrighted product, in this case software, has the exclusive right to store, reproduce, sell and lease the software. 

When someone leases a software or computer program, the relationship between the software owner or computer program owner and the customer is the same as that of a bailor and bailee. The bailor has absolute rights over the software or computer program and the bailee has limited rights over it and has it for a specified period of time after which they have to return it. The provisions of a Bailment have been explained in Section 148 of the Indian Contract Act, 1872. 

If any third party tries to reproduce the software or computer program, they would be liable for copyright infringement. In the case of criminal copyright infringement, the minimum punishment for an infringement of copyright is imprisonment for six months with a minimum fine of Rs. 50,000. Subsequently, in case of a second or subsequent conviction, the minimum punishment is imprisonment for one year and a fine of Rs. 1,00,000. 

However, the Copyright Act of 1957 does allow fair use and reverse engineering which means that fair use and reverse engineering of a software or computer program are allowed and it won’t be constituted as an infringement of copyright. Further, creating copies or adaption of such a software or computer program by a lawful possessor of such a software or computer program in order to create a temporary backup if there is a risk of loss or destruction, would not constitute an infringement. 

On top of all of these, if a person has been granted a license by the copyright owner to use the copyrighted work, then they cannot be made liable for copyright infringement.

Patent of softwares

Coming to patents for software and computer programs, even though the expression and methods of programming codes can be copyrighted, the operational methods and principles of the software and computer program cannot be copyrighted. Also, reverse engineering is fair use because of which reverse engineering of trade secrets is also permissible. 

So for all these reasons, patents become essential, to protect the software. A patent works on the scope of the work and not on how the work was developed. A patent is an ideal solution when the question concerns the protection of ideas and functionality of the software. But getting a patent is not that easy. 

To be granted a patent, the program or software mustn’t be merely an algorithm but a technical invention as well. Section 3(k) of the Patent Act, 2002 says: that mathematical methods, business methods, computer programmes per se and algorithms are not considered patentable inventions. In relation to computer programs, the law provides a qualification that what is not patentable is only computer programs per se. 

So software can be patented only if it is attached to an invention and the software is a component of that invention. To avoid the claim of Section 3(k) of the Patent Act, 2002, the hardware must be a part of the invention along with the computer program and the software. 

Similar to copyright laws, patent laws also allow the patent owner to give a license or authorize his patented work to be used by an individual or a third party, but it gives them limited rights over the patented work. But such a license can be granted through a written agreement as well, where all the terms and conditions are precisely mentioned and agreed upon. 

Software contracts

Just like any other contract, software contracts are also governed by the Indian Contract Act, 1872. Software contracts can be an agreement, license, or even a complete sale of the software. Since software fits into the definition of a good, irrespective of whether they are movable, tangible or intangible goods, then it would come under the purview of the Sale of Goods Act, 1930. In the case of Tata Consultancy Services v/s State of Andhra Pradesh (271 ITR 401), the apex court of India held that software could be considered a ‘good’, and it further stated that irrespective of whether computer software is protected by Intellectual Property, it is still considered to be a good, and it is subject to taxation.  

Licence agreement

A rightful owner of the software or a computer program can give access to a third party to use their software or computer program but this is not what is popularly followed. Most software and computer program developers prefer granting a license to the buyer rather than selling the whole software or computer program to them. This is preferred because a license is governed under Intellectual Property laws. Further, a license means that the rightful owner can retain some substantial and important rights related to that software. Plus, the owner has a higher chance of controlling several aspects of the software. Consequently, almost all rights to the software are reserved for the owner or developer, except for the right to run it.

Patent registration for a software in India

Patent Registration in India is governed by The Patents (Amendment) Act, 2005 which came into effect on the 20th of May, 2003. But getting patents for software is a complex process when compared to getting patents for other inventions. So, in order to secure a patent for software, it would be best to seek the advice of a legal professional in the field of software patent registration. 

Filing a patent for a software in India: 

  1. The idea needs to be written down first including the concepts lying behind it. There should be as much detail as possible in the description, including the working of the software, the area of invention, the codes, the advantages of the software, and how it will be used.
  2. The workings of the invention need to be explained properly and it is best if the diagrams, objects and sketches are mentioned as well. 
  3. It’s best to check whether the innovation is already enlisted and if yes, then if it follows the patent criteria. 
  4. After conducting proper and thorough research, it’s best to finalize whether to continue with the patent application. 
  5. Then a patent application needs to be drafted. 
  6. Once all the requirements and specifications are fulfilled, the application should be published. 
  7. Then the next step is to Request for Application and only after the request is submitted, the examiner examines the submitted application. 
  8. If any objections are raised with respect to the invention, it is best to respond and clear them.    
  9. Once all the requirements are met and the patent process is completed, the innovator can check the patent journal to check whether they have finally been granted the patent.

It is important to note that even though the process of software patenting seems fairly easy, many innovations are not allowed to be patented in India, especially those belonging to the technological field which includes the development of applications and software. The whole process is very complex, tedious and highly demotivating for the several coders and developers of India who come up with amazing innovations.   

However, it is well established in the Patent Laws that while establishing patentability, the focus should be on the fundamental substance of the invention and not on the particular form, which is claimed. Hence, it is important to judge the substance of the claims while considering the whole claim. If any claim, is in any form, such as a method or process, apparatus, system or device, computer program product or computer-readable medium, which falls under an excluded category, then such a claim would not be patentable. However, if the claim taken as a whole, does not fall in any of the excluded categories, then the patent registration cannot be denied. 

Hence, in order to obtain patent registration for software, it is very important to establish that the patent registration application does not pertain to only the software but also to the invention which is applicable for industrial use. 

In order to get a patent in India, one must go to the government portal where they can find all the information related to the patent filing, fees, forms, jurisdictions of patent offices and more and they can also check the status of their patent on that very same website.     

Conclusion 

The protection of computer software in India comes under the purview of copyright laws. But there is a scope of protection of literal and nonliteral parts of the software, fair use criteria, and authors’ rights under the ambit of license agreements which is yet to be discovered and recognized by the Indian courts. It can be further concluded that such programs can be protected under the patent laws provided that it is not merely algorithm-based software but it is an invention as well. But, without any proper legislation in place, defining the scope and protection of software as a trade secret seems like a limited and restricted option for the protection of the Intellectual Property vested in this software. 

In this era of advancing digital technologies, having these limited options for the protection of one’s original work in the field of software and computers might lead to a lack of newer innovation and creativity. Hence it is essential that the laws which are so vaguely made are amended and developed to protect a creator’s work and ensure that they are not disadvantaged at any point in time.  

References

  1. https://www.livemint.com/industry/infotech/indian-it-sector-sees-highest-growth-in-a-decade-adds-4-5-lakh-new-jobs-11644908035968.html
  2. https://www.law.cornell.edu/wex/intellectual_property#:~:text=Overview,monopoly%20in%20the%20protected%20property.
  3. https://www.techtarget.com/searchapparchitecture/definition/software#:~:text=Software%20is%20a%20set%20of,that%20run%20on%20a%20device.
  4. https://copyright.gov.in/
  5. https://www.wipo.int/patents/en/
  6. https://indiankanoon.org/doc/797096/#:~:text=(z)%20%E2%80%9Cwork%20of%20joint,sculpture%E2%80%9D%20includes%20casts%20and%20models.
  7. https://indiankanoon.org/doc/1240329/#:~:text=148.,of%20the%20person%20delivering%20them.
  8. https://www.indiafilings.com/learn/copyright-infringement-in-india/#:~:text=In%20the%20case%20of%20criminal,1%2C00%2C000%2F%2D.
  9. https://www.wipo.int/ip-development/en/agenda/flexibilities/details.jsp?id=8825#:~:text=Under%20this%20provision%20(Section%203,only%20computer%20program%20per%20se.
  10. https://ipindia.gov.in/writereaddata/Portal/IPOAct/1_69_1_patent_2005.pdf
  11. https://legislative.gov.in/sites/default/files/A1872-09.pdf
  12. https://indiankanoon.org/doc/153638/
  13. https://www.investopedia.com/terms/l/licensing-agreement.asp#:~:text=Licensing%20agreements%20are%20legal%20contracts%20that%20are%20written%20between%20two,to%20which%20licensing%20is%20allowed.

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S.P. Gupta v. Union of India : case analysis

By
Rachit Garg
-
0
Jurisprudence

This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. This article explains the case summary, which includes brief facts, issues involved, and the judgement. It further gives an analysis of the case and briefly portrays related cases and concepts. 

It has been published by Rachit Garg.

Introduction 

The Indian judiciary is one of the most important organs of the government and a pillar of democracy in the country. It has always lived up to the expectations of the people whenever they demand justice. The Hon’ble Supreme Court at the apex has served as the guardian of fundamental rights and interpreter of the Constitution of India. With its various judgements and guidelines, it has solved various questions on different subject matters at issue. From providing guidelines about sexual harassment of women in the workplace to clarifying the procedure of appointment of judges in the High Courts and the Supreme Court, it has been fulfiling its duty of being a guardian of the Constitution. 

Judges play an important role in the judiciary. The appointment procedure of the judges had to be transparent and unambiguous so that people could trust our Indian judiciary and the judges delivering the decisions. Earlier, there had been a lot of unambiguity in the procedure, which at times led to biases towards a particular candidate. All this was cleared with the help of the ‘Three Judges case’ initially, but then in 2015 another case was added to the list, which is known as the ‘Fourth Judges case’. The article gives a summary of the ‘First Judges’ case and also discusses other cases in the list. 

Details of the case of S.P. Gupta v. Union of India

Case Name

S.P. Gupta v. Union of India

Type 

Writ petition number: 274 of 1981

Citation 

AIR 1982 SC 149

Petitioner 

S.P. Gupta 

Respondents 

Union of India

Bench 

The Honourable Justice Y.V. Chandrachud was the then Chief Justice of India, while Justice P.N. Bhagwati was appointed as the Chief Justice of the country in 1985. The bench comprised seven judges, namely: 

  1. Justice P.N. Bhagwati
  2. Justice A.C. Gupta 
  3. Justice S.M. Fazal Ali
  4. Justice V.D. Tulzapurkar
  5. Justice D.A. Desai
  6. Justice R.S. Pathak
  7. Justice F.S. Venkataramaiah 

The majority of the judgement was given by Justice P.N. Bhagwati. 

Background of the case of S.P. Gupta v. Union of India

It is one of the first cases of the ‘Three judges Cases’ now referred to as the ‘Four Judges case’ after 2015, which played an important role in introducing a collegium system for the appointment of judges in the Supreme Court and High Courts. The Court, with the help of these cases, set a precedent for the principle of independent jurisdiction, which means that no other organ of the government except the judiciary itself will interfere in the election of judges. S.P. Gupta v. Union of India (1981), is the first case, which is also known as the ‘Judges’ Transfer Case’, established a precedent for the collegium system, while the second case, in 1993, made the system effective in the country and the third case, in 1998, clarified the loopholes in the system. In the fourth case in 2015, the Court abolished the National Judicial Appointment Commission that helped the President in the selection of judges for the Supreme Court and High Courts. 

S.P. Gupta was a pleader in the Allahabad High Court since 1951 and also served as the position of Advocate General for the State of Uttarpradesh twice during his long tenure in the profession. He was the main face of the case and played an important role in a case that further led to the establishment of the collegium system in the country for the appointment of judges.  

Brief facts of the case of S.P. Gupta v. Union of India

In 1981, a lot of writ petitions were filed by various lawyers and practitioners in different high courts. The issue in all the petitions was the same. All the petitions challenged an order of the government on the non-appointment of 2 judges and their transfer. The first petition was filed in the Bombay High Court and the second was filed in the Delhi High Court, which not only challenged the order of the Central Government but also questioned the constitutional validity of the procedure followed for the appointment of judges in higher courts. Various questions were issued on the appointment of 3 additional judges in the Supreme Court for a short term, which was not justified according to Article 224 of the Constitution. The petitions also sought and requested to convert the seats of additional judges into permanent judges, so as to achieve independence of the judiciary. 

One of the several petitions was filed by S.P. Gupta, who served as an attorney in the Allahabad High Court at that time, in the Supreme Court on the issue of the appointment of Justice Murlidhar, Justice A.N. Verma, and Justice N.N. Mittal as additional judges in the High Court. An advocate from the Ministry of Law and Justice questioned the validity of these petitions on the ground that there has been no legal harm to anyone because of the order of the government and the short-term appointments of judges in the courts.  

Issues involved in the case 

  • The main issue, in this case, was the constitutional validity of the order of the Central Government on non-appointments and transfer of judges in High Courts for a short term.
  • The letter of disclosure of communication between the Minister of Law, the Chief Justice of the Delhi High Court and the Chief Justice of India was also in question. 
  • The locus standi of the petitioners was also challenged.
  • Another important issue was the independence of the judiciary and the procedure for the appointment of judges in higher courts. 

Contentions of the parties 

Arguments from the side of the petitioner 

The petitioners in their petitions argued the constitutional validity of the order of the Central Government, which indirectly forced the judges to give their consent to the appointment as additional judges or else their permanency in the profession would be affected. They also argued and sought the disclosure of correspondence and communication that was related to the non-appointment of judges and their transfer for a short term. 

Another argument was that the President failed in his duty under Article 216 of the Constitution to appoint judges in the court to deal with the pendency of cases effectively, and so a writ of mandamus must be issued against him. It also said that the procedure laid out under Article 124 has not been followed properly. 

Arguments from the side of respondents 

The respondents on the issue of disclosure took the advantage of Article 74(2) stating that any advice taken by the President from any of the ministers in the Council of Ministers cannot be challenged and questioned in court nor the unpublished documents are used as evidence in the court according to Section 123 of the Indian Evidence Act, 1872. With regards to the issue of publication of documents, they referred to the case of State of Punjab v. Sodhi Sukhdev Singh (1961), where the Court held that when any document falls into the scope of ‘state affairs’, the head of the department has the right to decide whether it should be published or not. The Court also said that the advice given by the Council of Ministers in the meetings is covered under Section 123 of the Evidence Act and is thus protected from disclosure. 

On another issue, they argued that the petition filed by the petitioner must not be maintainable as no harm has been suffered by them. If it had to be filed, then the judges who had been appointed as additional judges must have done so. Thus, the Court must not hear the petitions as the petitioners are not the ones who suffered any kind of injury or loss due to the order of the Central Government. 

Judgement of the Court in S.P. Gupta v. Union of India

The majority decision by 5:2 in this case held that the non-extension of an additional judge, i.e., in this case, the non-extension of Judge S.N. Kumar, was valid. On the one hand, Justice Bhagwati recommended a collegium in order to recommend the names of candidates to the President for the appointment of judges in the Supreme Court and High Courts, while on the other hand, Justice Pathak and Tulzapukar held that the opinion and advice of the Chief Justice of India must be given importance and supremacy over the advice given by anyone else. While explaining the meaning of the word ‘consultation,’ it was unanimously held that it means full and effective consultation. The decisions of constitutional functionaries must be given after considering full and identical facts.  

Judgement – explained 

The Hon’ble Supreme Court in the present case, while denying the argument of the respondents on the disclosure of correspondence, held that the disclosure would not be made only if such disclosure would affect the public interest and is contrary to public policy. But if the disclosure is necessary for the public to know, it must be done without any delay. The Court talked about open and responsible government, where the government is accountable to the people for its work. This concept of open government directly indicates the right to know given under the ambit of freedom of speech and expression under Article 19(1)(a) of the Constitution. The very spirit of democracy demands an accountable and transparent government. There must be a check on their functioning and role. This can only be done if people are given the right to know. The only exception to the right to know is when any information relates to the security of the country or is of such a nature that its disclosure will harm the public interest. 

With respect to the advantage of advice taken by the respondents under Article 74(2), the Court said that the correspondence does not fall into the category of advice mentioned in the Article. Just because the correspondence was rendered as advice by the Chief Justice of India and the Chief Justice of the Delhi High Court, it will not be protected under the said Article. Moreover, it included their opinions, which does not amount to advice. 

While deciding on the third claim of the respondents, in which they sought the protection of unpublished documents from being treated as evidence under Section 123 of the Indian Evidence Act, 1872, the Court relied on the case of State of UP v. Raj Narain (1975), where the Court upheld the decision of the High Court on treating any unpublished document as evidence in the court. It gave the reason that the court has the authority to determine the kind of effect it will have on the public interest if it is disclosed to them. 

In the present case, there was no proper consultation between the government and the authorities to be consulted for the appointment of judges and their transfer, nor was it based on relevant grounds. The aim of the court is to create a balance between fairness and justice and serve the public interest. The appointment of judges and their transfer, in this case, comes in the public interest and so the correspondence was not contrary to it and had to be disclosed.  

Rule of law

According to Article 124 of the Indian Constitution, the number of judges in the Supreme Court will be decided by Parliament as per the law. Currently, the number of judges is 33, apart from the Chief Justice of India. All the judges in the Supreme Court will be appointed by the President and will hold office until the age of 65 years. 

Article 217 sets out the conditions for the appointment of judges in the High Court. The appointment will be made by the President. The recommendation of the candidates will be given by a collegium formed for this purpose. The Article further provides that a judge will not be qualified for the appointment in the following cases:

  • If he is not a citizen of India or
  • He does not have an experience of 10 years in the judicial office in the territory or,
  • He has not practised as an advocate for 10 years in the High Court. 

Observations of judges on different issues 

Power of the President to appoint judges of the High Court

It was observed by Justice Venkataramaiah that the President of India has the power to appoint the judges of the High Courts. This is given under Article 217 of the Constitution. He has to consult the required authorities, but he is not bound by their advice. In case of a difference of opinion, he must take into consideration every piece of advice given to him, think separately, and then make a decision. He must remember that he is not bound by any of the advice given to him, but it is given just to help him make a fair decision. 

The Honourable Justice Bhagwati observed and said that in this case, the advice was given by the Chief Justice of India and the Chief Justice of Delhi High Court. Just because it was given by the Chief Justice of India does not mean that his advice will be favoured or given more importance than the advice given by the latter. While consulting, the President must give equal weightage to all the advice given to him by every person he consults. It must not give any primary importance to one over the other.  

Consultation 

In the present case, Justice Desai clarified the meaning of the word ‘Consultation’. It said that the consultation sought by the President must be such that it is meaningful, purposeful, and result oriented. It must be an outcome of some substance. People consulted by him must give him honest and fair advice and must not hide anything. It was also clarified that the President can differ from the opinions of people he consulted and act contrary to their advice after giving reasonable reasons. 

Independence of the judiciary 

The Court in this case observed that the appointment of judges of high courts must not be done by the executive or else it will destroy the independence of the judiciary, which is one of the basic yet essential features of a democracy. They emphasised that there must be a separate procedure for the appointment of judges and their transfer in order to ensure the independence of the judiciary. 

Collegium system 

In order to achieve independence of the judiciary and keep the executive away from interfering in the procedure of appointment of judges, the idea and concept of the collegium system were introduced in this case. Justice Bhagwati suggested that there must be a collegium to recommend the names of the judges to the President, on the issue of appointment of judges in the Supreme Court and the High Courts. It must consist of such persons that have no bias against anyone and must give the names of such people that can contribute to the significance of the judiciary and serve its purpose. 

Analysis of the case of S.P. Gupta v. Union of India

The present case is seen as a milestone in the history of precedents which introduced the concept of the collegium system in India for the appointment of judges in the Supreme Court and the High Courts. It is because of this case that this system was followed after the judgement in the ‘Second Judges case.’ The case also laid emphasis on the independence of the judiciary and that the executive must not  interfere with it. There was apprehension that if the executive had the power to appoint the judges in the Supreme Court and High Courts, they would also interfere in the working of the judiciary and the powers of judges to adjudicate cases, thereby hampering the independence of the judiciary. But because of the establishment of the collegium system and various other case laws, this did not happen and the independence of the judiciary has been secured till date. 

As a matter of fact, the case is not only important for the independence of the judiciary but also because it gave importance to the right to know under Article 19(1)(a) of the Constitution. The Court in the case laid down the importance of an open government that is responsible and accountable to its citizens. There must be transparency and checks on the working of the government, and this is only possible if citizens are empowered and given the right to question the government. 

Not only this, but the case also served as a milestone for the PILs in the country. Earlier, a person who suffered any kind of injury or loss had the right to file a PIL in court. But in this case, the Court widened the scope and ambit of PIL and held that even a  person other than the one who suffered injury or loss can file a PIL in the public interest. It paved the way for the ‘Second Judges’ case’, which established the collegium system and cleared the ambiguity related to the loopholes in the ‘First Judges’ case.’ 

The Third Judges case further dealt with questions related to the working of the system in the appointment of judges and the meaning of the word ‘consultation.’ There had been a development in this list of cases in 2015 when another case was added, which is referred to as the ‘Fourth Judges case.’ This case abolished the National Judicial Appointment Commission that recommended the names of candidates for appointment as judges in the Supreme Court and High Courts to the President within the system on the ground that it did not lead to the independence of the judiciary, which is the ultimate aim. 

Thus, after the ‘First Judges’ case’, there has been a series of cases that helped the judiciary achieve its goal of ensuring the independence of the judiciary but still, the procedure for the appointment of judges cannot be seen as free from loopholes. 

The present collegium system consists of:

  • The Chief Justice of India
  • 4 senior-most judges in case of appointment of Judges in the Supreme Court;
  • 2 senior-most judges for appointment in the High Courts.

The procedure is still not as transparent as it was expected to be, and so we can expect some other changes in the near future as well.  

Other cases of four judges’ cases:

Apart from the present case, there are three other cases that are covered in the four judges’ cases as referred to after 2015 that helped in establishing a fair procedure for the appointment of judges and establishing a collegium for this purpose. These are:

  1. Supreme Court Advocate On Record Association v. Union of India (1993) – Second Judges Case
  2. Re special reference 1 of 1998 – Third Judges Case
  3. Supreme Court v. Union of India (2015) – Fourth Judges Case

Supreme Court Advocate on Record Association v. Union of India 

This case is popularly known as the ‘Second Judges Case.’ The loophole in the case of S.P. Gupta v. Union of India was cleared in this case. In this case, with the help of a 9 judge bench, the Court overruled the ‘First Judges case’ and held that the advice given by the Chief Justice of India is essential and important and must be considered. The majority of judges held that the advice given to the President must be constitutional so that no false advice can be given to him. This case further led to the adoption of a collegium system for the appointment of judges on the Supreme Court and the High Courts that was introduced in the ‘First Judges case.’ 

Re special reference 1 of 1998

This case is popularly known as the ‘Third Judges case.’ This case dealt with all the questions related to the working and administration of the collegium system. It increased the number of judges in the collegium to be consulted by the President on the appointment of judges. The collegium now consists of the Chief Justice of India and four other senior-most judges of the Supreme Court. It was also held that the presence of the Chief Justice in the collegium does not mean that only his advice will be taken into consideration but that everyone in the collegium will be consulted by the President equally. 

Supreme Court v. Union of India

This case is popularly known as the ‘Fourth Judges Case’ and was added to the list in 2015 after a judgement on the National Judicial Appointments Commission (NJAC). The NJAC was established by the National Judicial Appointments Act of 2014, which was held to be unconstitutional and thus, void by the Supreme Court. This Commission was formed to recommend the names of candidates for the appointment of judges in the Supreme Court and the High Courts within the collegium system. The five-judge bench, in this case, held the commission unconstitutional, stating that no proper parliamentary procedure was followed while enacting the 99th Constitutional Amendment Act, 2015, which established the commission. The Court also held the Amendment Act unconstitutional. The majority opinion held that it affected the independence of the judiciary as the commission was established by the legislature and so the appointment procedure of the judges would not be transparent. 

Conclusion 

This is one of the most important cases as it is the first case where the question related to the appointment of judges in the Supreme Court and the High Courts was raised and dealt with by the Court. The case discussed various aspects like the independence of the judiciary, the meaning of the word ‘consultation’, the power of the President to appoint the judges of the Supreme Courts and the High Courts and the introduction of the collegium system. It also widened the scope of PIL by allowing a person other than the sufferer to file public interest litigation in court. This case is also important for emphasising the right to know as part of freedom of speech and expression given under Article 19(1)(a) of the Constitution. This case paved the way for future developments in the judiciary. 

However, there is still a long way to go. The present collegium system for the appointment of judges is lacking in transparency. The risk of nepotism is always there due to insufficient criteria. All these issues might lead to various other judgements in the near future so that the ultimate goal of the independence of the judiciary can be achieved completely by the judiciary. 

Frequently Asked Questions (FAQs)

What are the qualifications of a judge of the Supreme Court of India?

According to Article 124, a person must have the following qualifications so that he can be appointed as a judge of the Supreme Court:

  • He must be a citizen of India. 
  • He must have experience of 5 years as a judge of the High Court or,
  • He must have experience of 10 years as an advocate in a High Court or more than one High Court or, 
  • He must be a distinguished jurist in the eyes of the President. 

What are the grounds for the removal of judges of the Supreme Court and High Courts?

The judges of the Supreme Court or High Courts can only be removed on the grounds of incapacity and proven misbehaviour. The  President must pass an order in this regard after an address by each house of parliament. 

What are the qualifications of a High Court judge?

According to Article 217(2), the qualifications of a judge of a High Court are:

  • He must be a citizen of India. 
  • He must have an experience of 10 years in a judicial office in the country or, 
  • He must have practised as an advocate in one or more high courts for 10 years. 

What was the composition of the National Judicial Appointment Commission?

The commission helped the President with the system established for the appointment of judges in the Supreme Court and High Courts and their transfer by recommending and suggesting the names of appropriate candidates suitable for the post. It is comprised of the following members:

  • The Chief Justice of India served as the chairman of the commission. 
  • There were 2 senior-most judges from the Supreme Court. 
  • It also comprises the Minister of Law and Justice. 
  • The other members included two eminent persons who were selected by a committee having the Prime Minister, the Chief Justice of India, and the leader of the opposition party as members. 

How many members are there in the collegium for the Supreme Court?

There are four seniormost judges of the Supreme Court, along with the Chief Justice of India, in the collegium for the selection and recommendation of judges in the Supreme Court. The collegium recommends the names of suitable candidates for the appointment of judges in the hon’ble court to the President, who then selects from among the recommended candidates. 

References 

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