Effective use of available technology is essential to being a knowledgeable law student. You’ll need to be able to process much knowledge in a very short amount of time if you want to succeed in law school.
Managing your time and resources effectively can be facilitated by using technological tools to alleviate tension, taking notes, and assisting with studying.
Because time management is crucial as a law student (and later as a lawyer), incorporating the best app mobile for lawyers into your daily routine may significantly influence how well you do in law school.
During your time in law school, locating lawyer apps you enjoy using might be beneficial. You will be a more effective and well-organized law student if you always have your preferred learning tool or planner within easy reach.
Table of Contents
Top 6 apps for lawyers
Slack
Slack is a web-based collaboration application enabling users to connect with their coworkers from any location and using any device they want. As a lawyer using Slack, you can:
Communicate via text or video/audio call
You can talk with the whole team at once or in private.
Send each other copies of crucial documents using the appropriate protocols.
Utilize multiple channels organized by using different hashtags (for example, a #legalresearch channel where you and your team exclusively share material regarding research, or a #finance channel for any specific content linked to finance).
People are encouraged only to share relevant information, papers, and relevant images when there are multiple channels to choose from. This indicates that all the files and documents are located in the appropriate locations, and you do not need to look for them.
Slack is available on desktop computers and mobile devices (iOS and Android), and monthly price levels begin at $6.67.
VeePN
Becoming a lawyer isn’t easy, especially having privacy in your cases so that no one would find out the strategy you’re going to work with. Therefore, a phone VPN app is essential. Having a VPN will protect all your strategies and techniques that you may employ in the courtroom. VeePN is your VPN if you are in search of the best lawyer apps.
VeePN has a VPN app for iPhone, so you can easily get it in the apple store on your iPhone. But don’t worry, Android users, you can also download VPN for Android, so go ahead and get it on the play store. Both iPhone and Android users are on the safe side.
Lexicata
Another of the most useful apps for lawyers is Lexicata. This customer relationship management software can make it much easier for you to do administrative activities such as client intake, lead collection, and customer follow-up.
You can use Lexicata to sign documents and utilize the reporting capabilities to evaluate how well your digital marketing approach is performing. This app is a partner of Clio’s, offering the same high-quality customer service as Clio.
FastCase
One of the best lawyer apps you’ll get is FastCase. The application provides attorneys with access to a comprehensive digital legal library, which they may browse on their mobile phones or tablets. On the FastCase app, attorneys can search for and find information on various topics, including specialty courts, federal and state legislation, and others.
If you are a member of any professional organizations or state bars, you can start with a free version that is good for only one day before upgrading to a paid plan that costs $65 per month. Both Android and iOS versions of FastCase are currently available.
Buffer
Buffer is an all-inclusive social media management platform that assists company owners, and corporations improve the efficiency with which they manage their presence on social media.
In today’s highly digitalized world, it is very necessary for businesses of any kind, including attorneys and other legal professionals, to actively manage their presence on social media.
It is possible for attorneys and legal firms to efficiently manage all of their social media accounts, including those on Facebook, LinkedIn, Twitter, Instagram, and other platforms. Legal practitioners now can schedule social media postings, monitor their brand mentions, and keep up with the latest developments in the legal industry thanks to these apps for lawyers.
Quizlet
Another excellent lawyer apps recommendation is Quizlet. You’ll need to commit a lot of knowledge to memory while you’re studying law. Within the Quizlet app, you can build your personalized digital flashcards.
You may also teach others with your flashcards by sharing them with them. The most beneficial aspect of using this program is that you will never be without access to your flashcards, which is useful if you find yourself with some spare time to study. You also have the option to design a study set on Quizlet, which will generate an individualized study program for you based on your examination date.
This choice allows you to monitor your progress and sends you reminders via push notifications when it’s time to get some studying done.
Which is the best app for law students? There is no precise answer to this because all apps play their roles with the help of a lawyer. You may make your law practice more profitable with the help ofapps for lawyers.
Don’t let the want to sample them all at once get the better of you. Instead, focus on the few best app mobile for lawyers that you think will benefit you most. Your collection of apps is always open to expansion; no matter how much time passes.
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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This article has been written by Ayush Tiwari, a student of Symbiosis Law School, NOIDA. This article elaborates upon Section 154 CrPC, 1973, its fundamentals, procedure of filing an FIR, and difference between Section 155 and 161 CrPC.
Introduction
First Information Report (FIR), or the first information of a cognizable offence to the officer in charge of a police station, is covered under Section 154 of the Code of Criminal Procedure, 1973 (CrPC). Although the word “FIR” is not defined in the Code, it refers to oral information on the conduct of a cognizable offence that is provided to the police at the earliest possible moment. An FIR is not intended to be fully detailed; rather, it is intended to initiate the criminal justice system. The information provided to the police officer in order to register a case may be true and accurate.
An FIR is an essential document for both parties (prosecution and defence). It serves as the case’s initial foundation. The prosecution case will collapse if the foundation is weak.
Investigation is one of the crucial tasks that the police perform. The goal of an investigation is to gather evidence and arrest the wrongdoer. Police investigations are covered under Sections 154 to 176 of Chapter XII of the Criminal Procedure Code of 1973, which is titled “Information to Police and Their Power of Investigation.”
Section 154 CrPC
Since the information obtained under Section 154 is referred to as FIR, it is crucial to understand the rules governing the process for recording information in relation to offences that are cognizable.
If the information is provided verbally to a police officer in charge of a police station, that official is required to reduce it in writing. The informant should then read it over and sign it thereafter. The information obtained in this way must be entered in a book called the “book of records” that has been approved by the state administration.
The informant must receive a free copy of the information that was recorded.
The aggrieved party may send the information to the Superintendent of Police if the officer in charge refuses to record it. If the Superintendent of Police is satisfied that the cognizable offence has been committed, he or she will either conduct the investigation himself or instruct a subordinate police officer to do so. In relation to the relevant offence, this police officer will have all the authority of an officer in command of the police station.
Section 2 of the Code of Criminal Procedure defines a cognizable offence. A cognizable offence is one in which a police officer can make an arrest without the need for a warrant or the consent or order of the magistrate in line with the First Schedule or any other statute currently in effect.
According to Section 154 of the Criminal Procedure Code, in order to initiate an investigation into a cognizable offence or case, a police officer must first receive the First Information Report (FIR) pertaining to the cognizable offence, which can be acquired without the Magistrate’s authorization, and enter it in the general diary.
What is a non-cognizable offence
The Criminal Procedure Code, 1973 defines a non-cognizable offence as one for which the police lack the legal right to make an arrest without a warrant.
According to Section 155 of the Criminal Procedure Code, 1973, if a police officer obtains information on the commission of a non-cognizable offence, he is required to record the case’s details in the station diary and direct the informant to contact the relevant magistrate.
It is crucial for the police officer to have the magistrate’s approval before beginning an inquiry in a non-cognizable offence.
Scope and application of Section 154 CrPC
The first statement made by a person who reports an offence to the police is of great significance since it is usually the true account of what happened, provided at the earliest opportunity with little time for embellishment or fabrication. This section outlines the procedures for timely and accurate information recording. It requires the police officer in charge to follow specific instructions and procedures for documenting the initial report. The following conditions apply to the initial information recorded:
The information must relate to the commission of a cognizable offence and must be specific enough for the police to begin an investigation. The information must be relevant to the conduct of an offence that is cognizable on its own terms, not just in the context of later events.
It must be the information supplied to the officer in charge of a police station (who is authorised by Section 154 to register an FIR), any other police officer (such as an officer of the Anti-Corruption Police), or the Superintendent of Police, who is authorised by subsection (3).
It must be the first complaint of the offence to a police officer made with the view of his acting in the manner described in its written documentation. In Soma Bhai v. State of Gujarat (1975) When the A.S.I. received a report about the incident and the A.S.I. asked the police station for guidance over the phone then before putting it in writing, it was the report that was put in writing by the police station in the FIR, rather than the telephonic message, that made up the FIR.
It needs to be reduced in writing and have the informant’s signature. Therefore, even if it was the first time, a coded and anonymous oral communication sent over the phone cannot be considered an FIR. However, the Rajasthan High Court noted in Tehal Singh v. the State of Rajasthan (1978) that if the telephonic message had been given to the officer in charge of a police station, the person providing the message is an ascertained one or is capable of being ascertained; the information has been reduced into writing as required by Section 154 Cr.P.C.; it was a faithful record of such information and the information reveals the commission of a cognizable offence and therefore was not cryptic or incomplete in essential details, and it would constitute FIR.
It is the information that forms the foundation of the investigation, as opposed to information the police receive after the investigation has begun, which is covered by Sections 161–162 of the 1973 Code and does not constitute a First Information Report (FIR), even if the person who made the subsequent statement may have been the FIR’s original informant.
It must not be ambiguous or unclear. According to the Supreme Court of India in the case of State of U.P. v. Nahar Singh (1998), “the purpose of an FIR is just to set the investigation agency in motion, it must neither be too ambiguous nor too imprecise, yet non-mentioning of specifics of each and every aspect is not a floor to dismiss the case of the prosecution.”
The information’s substance must be put in a required book at the end of the process of filing an FIR.
It is not necessary for the informant to know exactly who committed the offence, when it was done, or what the circumstances were when filing an FIR. It is the investigation’s goal to learn more about these issues. Whether the information is eligible under Section 154 depends on the law; it is not up to the station officer to decide whether to treat it that way or not.
In Lalita Kumari v. Government of U.P. (2013), a five-member bench found that Section 154(1)’s requirements must be followed and that the official in question has a responsibility to file the case on the basis of information indicating the conduct of a cognizable offence. In plain English, it is mandatory. However, if no cognizable offence is indicated in the provided material, the FIR need not be filed right away, and the police may instead undertake a preliminary investigation for the sole purpose of determining whether or not a cognizable offence has been committed. The informant must be told within seven days after the preliminary inquiry’s conclusion whether or not the FIR should be filed, and if not, why, as the Court has indicated in various areas such as family disputes, medical negligence cases, etc. However, there is also a safety net provided. The requirement to file an FIR has several benefits, including serving as the first step in a victim’s “access to justice,” upholding the rule of law, facilitating quick investigations, and preventing exploitation in criminal proceedings in many ways.
Object of Section 154 CrPC
According to the section, the main goal of the First Information Report (FIR) is to initiate criminal proceedings, and according to the investigating authorities, it is to gather information about the alleged criminal activity in order to take appropriate action to find and prosecute those responsible.
The other objects of recording an FIR include:
To inform the District Magistrate and the District Superintendent of Police, who are responsible for upholding safety and tranquillity in the district, about the offence that was reported at the police station.
To secure and defend the accused against additions or changes in the future.
Procedure of filing an FIR under Section 154 CrPC
Whoever has knowledge of the commission of an offence that is cognizable may disclose it to the police, and Section 154 of the Code specifies how this information should be documented. Section 154 of the Code, the Police Act, 1861 and the rules of criminal practice established by the relevant high courts can all be used to determine how to register an FIR. An examination of Section 154 reveals the following:
An officer in charge of a police station with jurisdiction over the case must receive the information to investigate.
If the information is provided to the officer verbally, it must be converted to writing by the officer in charge or by someone else with his approval.
If the information is provided in writing or is reduced to writing as described above, the informant must sign it.
The informant must verify the information that has been recorded in writing.
The police officer is next required to record the information’s main points in a book he keeps in the format specified. Station Diary, General Diary, or Roz Namchara are the names of this book. (Police Act, 1861 ).
The information, as it was documented in the aforementioned way will then be immediately delivered to the informant in a copy.
Contents of an FIR
FIR serves as the very foundation for the investigation and provides a means of ensuring swift and proper justice. Therefore, it is crucial that the following elements be covered in the FIR in a straightforward manner without any ambiguity.
The complainant’s name and address;
Information on the incident’s date, time, and place;
The incident’s actual facts as they happened;
The identities and descriptions of those engaged;
Details of witnesses, if any.
The Parliament added sub-section(2) to Section 154 of the Criminal Procedure Code in order to preserve the version made by the informant at the earliest possible moment from any claims of tampering with it and to shield it from any ensuing changes or additions.
Remedy on refusal to register FIR under Section 154 CrPC
Anyone attempting to file an FIR should be aware that only cognizable offences can be filed under Section 154, not non-cognizable offences. He should thus confirm that the offence is of a cognizable character. The police are required to file an FIR after learning of a cognizable offence from the informant.
In the case of Prakash Singh Badal v. State of Punjab, the Supreme Court of India found that the official in charge of a police station is required by law to open an investigation after receiving information about an offence that is cognizable.
In the case of Haryana v. Bhajan Lal (1992), the Supreme Court of India ruled that the validity, dependability, and trustworthiness of the information are not reasons to forgo registering it. In the event of a cognizable offence, the police may occasionally refuse to file a first information report. This may be lawful or unlawful. When they lack the authority to do so or the offence is not one that can be recognised, it will be deemed legal. However, it is against the law when the police decline to register the case for obvious reasons without any convincing legal support. The informant must be instructed to submit a complaint with the magistrate if the police officer declines to register the FIR on the grounds that it exposes a non-cognizable offence. Information should be documented and sent to the local police station with jurisdiction, and if the offence was committed outside of the jurisdiction of the local police station, then it should be forwarded to an appropriate one; failing to do so would be a breach of duty.
In the 1993 case State of A.P. v. Punati Ravulu, the Supreme Court of India ruled that a public official’s failure to record information constitutes a breach of duty. According to this case, the Superintendent of Police, under Section 154(3) of the Cr.P.C., or another police officer mentioned in Section 36 of this Code should be contacted as a person’s initial course of action if they have a grievance that their FIR has not been recorded by the police station. If the Superintendent of Police is certain that the information reveals the commission of a cognizable offence, he must either personally investigate the matter or order a subordinate police officer to do so in accordance with the Code’s specified procedures. Furthermore, it states that the subordinate police officer who is looking into the offence will have all the authority of a police station officer in connection to that offence .
Who can lodge an FIR
Any person who has knowledge of the commission of a cognizable offence may file an FIR. No matter how small the offence, as long as it is a cognizable offence, the police officer in charge must file an FIR. If a police officer learns about the commission of any offence that is punishable by law, they may independently file an FIR. In other words, anyone can submit an FIR. against a person or persons:
Who committed the offence;
Who is aware that an offence has been committed;
Who witnessed the offence being committed;
Someone who is in possession of knowledge regarding an offence.
Therefore, it is obvious that an FIR might originate from any source. Even an anonymous letter submitted to the authorities informing them of an offence may be considered a formal complaint. It is not essential for only the eyewitness to file it, nor is it necessary for the informant to have firsthand knowledge of the offence.
An FIR filed by the accused
The individual who first filed the FIR alleging a murder later turned out to be the accused, then his report will not be the first information report as it was confessional and is an admission from him of particular facts that are relevant to the topic at hand, like how and by whom the murder was committed, as found by the court. If the accuser’s admission in the court contests the accuracy of a particular claim made regardless of whether the FIR is valid or not, the prosecution witnesses demonstrate his guilt as evidenced by his pertinent confessions.
Where to file an FIR
FIR is to be filed at the police station nearest the scene of the offence . An FIR cannot be denied by a police station. One should be aware that each police station has a jurisdictional area that includes the areas where they are allowed to look into offence s and offences.
Delay in lodging FIR
The fact that the FIR was delayed in being filed cannot, by itself, cast doubt on the prosecution’s case. It is not advisable to anticipate that people will rush to the police station right away following an incident given the state of mind they are in. It may not always occur to them that they should provide a report since they are grieving over the tragedy. In these circumstances, it is only normal that they would need some time to travel to the police station and file a report. The court cannot dismiss the prosecution’s version as stated in the FIR and thereafter supported by the evidence only on the basis of delay unless there are indications of fabrication. It could not be argued that there was an excessive or unreasonable delay in filing the FIR given the number of conflicts that day.
According to the ruling in the case of Amar Singh v. Balwinder Singh (2003), there is no set deadline for submitting a police report. A simple delay in filing an FIR cannot serve as a defence alone for destroying the credibility of the whole prosecution case. The court must examine the delay and seek an explanation for it. If the wait is justified to the court’s satisfaction, it cannot be used against the prosecution’s case. When eyewitnesses are credible and dependable, a simple FIR filing delay would not be sufficient to invalidate the prosecution’s whole case. If the substantive evidence suggests the accused’s participation in the offence is otherwise trustworthy and persuasive, a simple delay in filing the FIR would not be a determinant.
“When there are rape accusations, delay in and of itself is not a mitigating element for the accused.” The failure to file a first information report on time cannot be used as a ritualistic pretext for dismissing the prosecution’s case and casting doubt on its truthfulness. It just alerts the Court to look for and weigh any possible justifications for the delay. The Court’s only job after it is provided is to determine whether it is acceptable or not. It is a relevant element if the prosecution cannot satisfactorily explain the delay and there is a chance that their version of events may have been embellished or exaggerated as a result. However, a convincing justification for the delay is sufficient to disprove any allegation of misrepresentation or the weakness of the prosecution’s case.
Delay in cases of sexual offences
The prosecutrix or her family members’ unwillingness to go to the police and report the occurrence, which affects the prosecutrix’s reputation and the honour of the family, might be one of many reasons why a case of a sexual offence results in a delay in filing an FIR, which the courts cannot ignore. In a community with strong traditional values, some delay in filing an FIR in rape cases is normal to prevent harassment, which is unavoidable when a woman’s reputation is at stake.
The complainant in the case of Ram Swarup v. State of UP(2011), was a foreign national. The woman was in shock following the rape committed on her by two people, and it wasn’t until she called the Italian Embassy and got guidance from them that she was able to file a case with the local police. The aforementioned justification was deemed adequate by the court and left no room for dispute in the prosecution’s case.
Therefore, the FIR will have more credibility if it is made before the informant has a chance to embellish. However, excessive or unreasonable delay in filing the FIR invariably raises suspicion, which puts the court on alert to search for the potential motivation and explanation and examine its impact on the credibility of the prosecution version, if any.
Evidentiary value of an FIR
Under Section 157 of the Indian Evidence Act 1872, it may be used to support an informant witness. But it can’t be used to refute or undermine the testimony of other witnesses.
Under Section 145 of the Indian Evidence Act, 1872 it may be used to refute an informant witness.
According to Section 155(3) of the Indian Evidence Act, 1872 the defence may utilize the FIR to challenge the credibility of the complainant.
To use it as proof of the informant’s actions in accordance with Section 8.
However, apart from the uses under Sections 145 and 157 where the accused is examined as a witness, the FIR could be used against the suspect when the information was provided by him as proof of his conduct (Section 8 of the Indian Evidence Act, 1872) or as an admission (Section 17 of the Indian Evidence Act, 1872), provided it is a non-confessional statement.
However, a single accused’s FIR cannot be used to disprove another accused or contradict any other testimony.
If any portion of the accused’s statement represents a confession, the law of severability cannot be applied to exclude that portion of the statement from consideration as evidence.
An FIR filed by the accused cannot be used against him to prove his intent to commit the offence , among other things.
According to Section 32(1) of the Indian Evidence Act, if the informant passes away and the FIR includes a statement about the reason for his death or the events leading up to it, it may be used as substantial evidence to show the reason for his passing.
The claim that the accused was unjustly accused is to be dismissed when the FIR is promptly filed, reliable, and backed by evidence.
The FIR may also turn into important evidence in the following situations:
During the dying declaration, when a person was testifying about the circumstances surrounding his death. In these circumstances, Section 32(1) of the Indian Evidence Act, 1872 permits the admission of the FIR.
If the Station House Officer claims that he was present when the accused was harming him, which resulted in the injuries occuring.
When the person who wrote or read the FIR is unable to recollect the relevant details but is confident that the FIR accurately portrayed those details at the time of writing or reading it.
Rights of person who has lodged the FIR
The informant is entitled to receive a copy of the FIR as soon as it is filed [Section 154(2)].
Following the receipt of the FIR, the officer in charge of the police station is required under Section 157(2) to advise the informant that he will not be conducting an investigation if he determines that there are insufficient grounds for doing so.
The officer must provide his report to the magistrate when the inquiry is over. At this point, he must advise the informant of the actions he took [Section 173(2)(ii)], which includes giving the informant a copy of the report submitted in accordance with Section 173(2)(i).
The Supreme Court has also held that if the Magistrate, after studying the Police Report according to Section 173(2)(i), is not disposed to take cognizance of the offence and issue procedure, or where there is enough evidence to proceed against some of the suspects named in the FIR:
Give the informant notice, and
Give him a chance to speak out once the police report is being considered so that the informant may make arguments as to why the magistrate should recognize the offence.
False FIR’s
A fraudulent FIR is one in which the information given is misleading and for which a penalty has been imposed. Anyone who provides wrong information to a public official with the aim to harm another person is subject to imprisonment for a term that may extend to 6 months, a fine of up to 1000 rupees, or both under Section 182 of the IPC. Anyone who knows or has cause to think that an offence has happened and spreads false information about the offence is subject to a sentence of up to two years imprisonment or a fine, or both under Section 203 of the IPC.
In addition, Section 211 states that anybody who brings criminal accusations against someone with the aim to harm them or who accuses someone falsely even when they are aware that there is no legal basis for doing so faces up to two years in jail, a fine, or both. Or, if the case or false accusation carries a sentence of life imprisonment, death penalty, or imprisonment of seven years or more, then the offender will be punished with up to seven years in jail, a fine, or both.
On the other hand, Section 177 covers situations where a police officer gives incorrect information that he is aware that it is untrue.
Second FIR in a case
According to the law, which was established in the case of Kari Chaudhry v. Sita Devi in 2002, there cannot be two FIRs filed against the same accused for the same offence. However, if there are new accounts of the occurrence that led to two FIRs, then two FIRs must be filed, and an inquiry into those FIRs can proceed.
However, the court determined in Upkar Singh v. Ved Prakash, (2004), that the code does not prevent filing two FIRs for the same occurrence, and the police are not justified in declining to file the second FIR. In this situation, the Magistrate has the authority to order the police to look into the second FIR as well.
Zero FIR
Any police station, regardless of its scope of authority, may record a zero FIR. It is typically employed for offence s like murder and rape, as well as other cognizable offences, or offences for which police can act without first seeking a court’s permission. Before it is handed to the relevant jurisdictional station, basic action and investigation are taken. It is useful for offences that need to be addressed right away since it enables quicker action that is not slowed down by bureaucratic procedure and takes into account whether the police station whose jurisdiction the offence falls under is difficult to get to. Police officials who disregard the registration of zero FIR may face disciplinary action as well as prosecution under Section 166A of the IPC.
According to the statutes, the accused is allowed to get a copy of the FIR early in the judicial process. This indicates that the FIR may be obtained by the accused before the charge sheet is submitted.
On payment of a fee, an accused person may submit an application through a lawyer to get a certified copy of the FIR. The report must always be delivered within 24 hours after making such a payment.
The application for a certified copy must be presented by the accused to the relevant court within two days if the FIR has been forwarded to the concerned magistrate or special judge.
Within 24 hours of the FIR being recorded, copies of the FIR must be uploaded on the police website or, in the absence of a police website, the state website. Sensitive case-related FIRs need not be uploaded.
Anyone holding a position below that of Deputy Superintendent of Police or an equivalent grade cannot decide whether to upload the FIR or not. When the District Magistrate assumes a position, he has the authority to decide as well. Any such choice must be reported to the appropriate magistrate.
The appropriate authority may decide what constitutes “sensitive” information.
The absence of the FIR does not, in and in itself, constitute a violation of Section 438.
A committee of three officers will be formed by the Superintendent of Police or Commissioner to address the matter when a copy of the FIR is withheld on the grounds that it is confidential. The complaint must be resolved within three days after receiving the representation.
When it is decided that copies won’t be provided, the aggrieved person may file an application to the appropriate court for a certified copy, which must be given within three days.
Difference between Sections 154 and 155 CrPC
While Section 154 of the Code deals with information on cognizable offence s, Section 155 of the Code deals with information on non-cognizable offences.
A cognizable case requires the official who is in charge of the police station to file an FIR, but a non-cognizable offence requires the police to send the information to the local magistrate and file an FIR only after receiving his approval.
On the basis of the first information he receives and records, the police officer can launch an inquiry into an alleged cognizable offence. However, this is not the situation for non-cognizable offences. According to Section 155 of the Criminal Procedure Code, the police officer must give the magistrate the information they have gathered before they may begin an inquiry into an offence of a non-cognizable nature.
Difference between Section 154 and 161 CrPC
Information acquired following the start of the inquiry, which is covered by Sections 161–162, must be differentiated from the FIR.
An eyewitness account that a police officer records as soon as they arrive at the scene of the incident cannot be used as the basis for a police report. However, that would not invalidate the eyewitness testimony, which will need to stand or fall on its own.
The complaint cannot be considered as an FIR because that would be a statement made during an investigation and would be subject to Section 162 of the Cr.P.C. when the investigating officer purposefully chose not to file the FIR after receiving information about a cognizable offence and instead filed the complaint only after travelling to the scene and after careful consideration, consultation, and discussion.
Difference between an FIR and a charge sheet
The first document filed is called an FIR which comes before the charge sheet. As soon as an offence is committed, an FIR is filed. Once the inquiry is concluded, only then is a charge sheet issued.
A victim, witness, or other individuals with knowledge of the offence may file an FIR with a police officer, but the police officer creates the charge sheet, which is referred to as the final report. Section 173 allows for such a report, and it is given to the court. The case is officially started after the charge sheet is delivered to the court.
While an FIR contains the information provided concerning the conduct of an offence that initiates the investigation process, a charge sheet provides the name of the individual against whom the charges are being filed and set out the charges.
Difference between an FIR and a complaint
Section 2(d) of the CrPC defines a complaint as “…meaning any accusation submitted orally or in writing to a Magistrate.” Although a complaint is a sort of FIR, the law has established a few distinctions between the two, which are listed below;
A complaint may be filed for either a cognizable or non-cognizable offence, but an FIR exclusively deals with cognizable offences.
A complaint is submitted to the Magistrate while an FIR is filed at a police station and information is provided to a police officer.
For a complaint, there is no set format, although Section 154 of the CrPC specifies the process for an FIR.
When filing an FIR, anybody who is a victim, a witness, or has information about the offence may do so, with the exception of cases involving marriage or defamation.
However, in the situation of a complaint, the Magistrate instructs the investigation to begin and will also order the police to file an FIR of the same case. In the case of an FIR, as it only deals with cognizable offences, the police officer can begin an investigation even before seeking permission from the magistrate.
Conclusion
The FIR is crucial in every criminal case since it is the opening stage of any criminal prosecution. FIR is evidence that causes the start of criminal procedures, which leads to a criminal’s conviction. A first information report, as its name implies, is the action taken in the event of a offence , followed by an investigation, a court case, and the punishment of the guilty. It serves as a record of the details of the victim’s account. The FIR serves as the foundation for all subsequent actions taken by the police. As a result, it is the earliest and first information of a cognizable offence that a police station officer has ever documented. The FIR turns out to be the key piece of evidence upon which the prosecution’s case is based. The state’s responsibility is to take cognizance, which gives the victim a remedy and upholds justice in society.
Frequently Asked Questions (FAQ’s)
What happens once an FIR is filed?
The police are legally required to begin an investigation after an FIR has been filed. The process of an investigation entails but is not limited to, gathering information, speaking to witnesses, looking over the offence scene, taking notes, and doing forensic tests. The police will make arrests if the culprits are identified.
When the investigation is over, the police will compile all the information into a “Challan,” or charge sheet. The matter proceeds to court if it is decided that the charge sheet has sufficient evidence.
The case may be closed after the police have presented their arguments in court if they determine after the investigation that there is insufficient evidence to support a offence having been committed. The person who filed the FIR must be notified by the police if they decide to close the case.
Can the later version of information be considered an FIR?
Any later statement made during an inquiry, even if it is determined to be genuine, would not be admitted as FIR since the FIR is the one on which the investigation was first initiated. Therefore, the answer to the above question is “no.”
Can an FIR be quashed?
According to Section 482 of the CrPC, a court may dismiss an FIR for numerous reasons, including when the charge sheet is not presented soon after the FIR is registered or if there is convincing evidence that the FIR was filed as a counterclaim to another FIR. The Supreme Court issued the following instructions in the case Parbatbhai Aahir @ Parbatbhai Bhimshinhbhai Karmur and Ors. v. State of Gujarat and Anr. (2017) regarding the quashing of an FIR:
The inherent powers of the court are preserved under Section 282, which does not provide the High Courts with any additional authority.
Even if the matter is compoundable, there is still the option to quash it.
The facts and circumstances of the case will determine whether or not an FIR should be quashed on the grounds that it is compoundable.
The facts and circumstances of the case will determine whether or not an FIR should be quashed on the grounds that it is compoundable.
The nature of the offence must be considered when using the Section 482 power when a claim is made that the issue has already been resolved.
When it comes to quashing, cases that include a predominately civil dispute component differ from other cases.
Cases that result from primarily civil, financial, or other comparable transactions may be dismissed under Section 482. However, it is also important to consider how an offence or economic fraud affects the economy, and judges are free to sustain a report on such grounds.
This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. The article explains the meaning and object of patents. It describes the criteria used to grant patents, how to obtain patents, and grounds for opposition.
The scope of intellectual property is increasing and expanding with time and technology. It covers patents, copyrights, trademarks, industrial designs, etc., within its ambit. Whenever anyone creates a new idea, invention, or technology, he/she tries to seek protection and rights under the umbrella of intellectual property. The law relating to patents covers the concepts of novelty, uniqueness, and usefulness. In India, it is governed by the Patents Act, 1970, which has further been amended by the Patents (Amendment) Act, 2002, and the Patents (Amendment) Act, 2005.
A patent is a form of industrial property and is now included in the ambit of intellectual property. It is an exclusive right that is granted to a person for inventing a new and useful article or if he/she makes an improvement to an existing article and devises a new process or technology to manufacture the articles and products. In order to get a patent for an invention, it has to pass the test of:
Novelty,
Non-obviousness and
Utility.
The article explains the meaning, objectives, terms, and advantages of a patent and the test an invention has to undergo in India to get a patent.
What is a patent
The term ‘patent’ originated from the term ‘letter patent’ which means open letters. These instruments or letters under the great seal of the King of England were addressed by the Crown in which certain rights and privileges were conferred on one or more individuals. In the 19th century, new inventions were made in the fields of art, manufacturing, machinery, products, apparatuses, etc., and they were cautious about such inventions being used by someone else. The then British rulers, in order to protect the inventions from being used by someone else illegally, enacted the Indian Patents and Design Act, 1911.
With the advancement of time, there was a need for a comprehensive law that exclusively dealt with patents, rights of the patentee, and other requirements of a patent to prevent prejudice and promote trade and industrial development. Thus, the Patents Act was passed in 1970, and ‘patent’ acquired a statutory meaning in the country. It means granting some privileges, rights and authorities made by the sovereign for a new and useful invention of an article or technology to manufacture new or existing articles.
An invention is a creation of intellect that is applied to capital and labour in order to produce a new and useful product. Such creations become the exclusive property of the person who invented them and are called intellectual property. Rights conferred upon the inventor are known as ‘intellectual property rights’. In the case of a patent, the owner is called the patentee and he is entitled to all the rights and obligations for his creation or invention in the same manner as the owner of any other movable property has in his/her property.
Objectives of obtaining a patent for an invention
The object of the patent is to encourage people to invent new technologies and develop the industry. The granting of patents gives exclusive rights to the patentee in his intellectual property and helps in technical progress in the following ways:
It encourages new inventions and research.
It persuades an inventor to disclose his invention rather than keep it as a trade secret.
It offers rewards to the inventors so that they can deal with the expenses of invention until they are commercially practicable.
It encourages the inventor to invest capital in new technologies to meet the requirements of production.
In Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries (1979), the Hon’ble Supreme Court explained the objective of a patent. The object is to encourage scientific research, new technology, and the progress and development of industries. It stated that the purpose of an invention is to protect and promote fair competition in technology in order to transform the creations into productive forces. It was observed that the foremost principle of the patent law is to grant a patent only for an invention that is new and useful, i.e., novelty and utility, respectively.
Types of patent applications in India
According to the patent laws, six types of patent applications are granted in India. These are:
Ordinary application
This application is made when the owner or the applicant does not want to claim any priority over the previously filed application and no previous application has been made in this regard. It is also called a non-provisional application and must contain the details of the invention at length.
Convention application
This application is filed when the applicant wants to claim a priority date over a similar application filed in any convention country. The applicant must file an application within a year in the Indian Patents Office after filing a similar application in the convention country.
PCT international application
If an applicant wants to get his invention patented in different countries, he must file this application. It is governed by the Patent Cooperation Treaty and can initiate the process of patenting in multiple countries at once.
PCT national phase application
This application is filed in a country where the invention is to be patented. It must be filed within 30 or 31 months of the priority date or date of filing an international application.
Patent of addition
This application is filed if the applicant wants to make any changes to the already patented invention. Hence, no separate fees are to be paid.
Divisional application
If the applicant wants to divide an application into two or more for the purpose of claiming more than one application, he must file a divisional application. The priority date of a divisional patent and a normal patent is the same.
The term of patent in India was 14 years earlier, except in the cases of food and drugs, for which it was 5 years from the date of sealing and 7 years if the patent had been granted then from the date of the patent. However, since the Patents (Amendment) Act of 2002, the term of patents has been increased to 20 years (Section 53).
Advantages and disadvantages of obtaining a patent
A patent provides certain definite advantages to the inventor, but it is not compulsory to get the invention patented. An inventor can keep his invention secret as long as possible, but his idea or creation may probably be used by anyone, especially in cases of machines and technology. On the other hand, obtaining a patent for an invention gives many rights and advantages to the inventor. As we know every coin has two sides, and so does the patent. It has several advantages but does not lack disadvantages as well.
Advantages
It gives patentees the exclusive rights to use the invention for a definite period.
A monetary reward can be given by granting licences to others or assigning the patent.
It prevents others from using the invention, and if someone infringes the patent they have to pay the penalties.
Other competitors have to think of alternatives to the patented product as they cannot use or infringe on the rights of the patentee. This helps in the growth of technology and industry.
A patent specification does not disclose the details of manufacture, which means that the owner can enter into separate agreements with the licensee to transfer for some consideration, which is known as know-how. This includes techniques to manufacture products that are not patentable and which are not included in the specification.
Disadvantages
While filing an application for a patent, an inventor has to give a lot of information regarding the invention, which may be technical and secret. Anyone can easily copy the information when it is made public. This makes the process risky.
The process of getting a patent in India consumes a lot of time and money. Whether a patent is successful or not is a different question but the process is costly at every stage.
One has to pay the annual fee for the patent even if he/she cannot afford it otherwise the patent will lapse or expire.
Many people try to infringe the rights of the owner even after the invention has been patented so it has to be defended at any cost and may lead to court proceedings.
The protection given by patents lasts only for 20 years. The inventor has to reissue patents again if the provisions permit.
The protection of a patent only extends to the country that issued it. If an inventor wants to protect his patent in any other country, he has to obtain the patent of that particular country as well.
Patentability criteria
Every invention has to pass various tests and fall under the category of inventions that can be patented in India. The 3 main tests are novelty, non-obviousness and utility. There are certain requirements that need to be fulfilled in order to get a patent for an invention.
Requirements or principles of Patent Law
To get a product patented, it has to fulfil the following requirements, which also serve as the principles of patent law in India. These are:
An invention must be new.
It must involve an inventive step.
Capable of being used in industries i.e. industrial application.
It must not fall into the category of exceptions or subjects that are not patentable.
The following criteria determine what can be patented in India:
Novelty or newness
The invention must be new and not similar to any other inventions or existing products. According to Section 2(l) of the Patents (Amendment) Act, 2005 ‘new invention’ means an invention that has not been anticipated by prior publication and does not fall into the public domain. There must be no prior publication of the invention. However, a mere discovery does not amount to an invention. The two criteria for granting patents, i.e., novelty and utility, were recognized as important in the case of Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries (1979). It was observed in the case of Gopal Glass Works Ltd. v. Assistant Controller of Patents (2005), that for an invention to be patented it must be new and original. Novelty in itself is not a complete criterion. The product or invention must be sufficiently original as well.
Non-obviousness or inventive step
According to Section 2(1)(j) of the Indian Patents Act, 1970, any product or process that involves an inventive step and is capable of being used in the industry is called an invention. This definition makes it clear that the invention must have an inventive step and it must not be known to any skilled person in that particular field. Section 2(1) (ja) of the Act defines ‘inventive step’. The concept of inventive step was introduced in India in the case of Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries (1979). It also reiterated the four tests of obviousness. These are:
A skilled person must identify the inventive step in the form of prior use, art or knowledge.
He must be able to tell the difference between the subject matter and the invention.
Consideration must be given to observing the differences.
There must be a degree of invention.
Usefulness or utility
This is another important criterion for granting patents. An invention must be useful and have an industrial application besides being new and non-obvious. In the case of Cipla Ltd. v. F Hoffmann-La Roche Ltd. (2015), the Court observed that according to the definitions of ‘invention’ and ‘capable of industrial application’ under the Act, an invention must have a commercial use so that it can be utilized in the industries. In the case of Indian Vacuum Brake Co. Ltd. E.S. Luard (1925), the Court observed that the term ‘utility’ has not been used in an abstract sense in the Act. In order to qualify for a patent, an invention must have some utility. Mere usefulness is not enough.
Non-patentable inventions
Sections 3 and 4 of the Indian Patents Act of 1970 provide the list of inventions that are not patentable. These are:
Frivolous or fabricated inventions.
An invention that violates public morality or causes a serious threat and prejudice to human, animal or plant life.
Mere discovery of a scientific principle or a theory that is abstract.
Mere discovery of a new substance.
An invention which is done by the mere arrangement, re-arrangement or duplication of existing knowledge or devices.
A method of agriculture or horticulture.
Any process of treatment of humans, animals, and plants that may be medicinal, therapeutic, surgical, diagnostic, curative, etc.
A method of mathematics, business or algorithms.
Any literary, dramatic or artistic work.
Any presentation of information or process.
Topography.
An invention that is a result of the duplication of traditional knowledge.
Grounds of opposition to patents
Section 25 of the 1970 Act, provides the grounds on which an application for a patent may be opposed by a person interested in patents. The grounds are:
Patent obtained wrongfully
In order to oppose the application of patents, the invention must have been obtained wrongfully from the opponent. When the invention has been obtained from the opponent, the novelty has to be considered in the light of prior specifications and patents. If there is any prior public prior, there can be no remedy for the opponent.
Prior publication
This is another ground of opposition to the application of patents. Publication must be such that the people to whom the information has been given are free to use it in whichever manner they please. To satisfy this ground of opposition, a publication must be made before the priority date claimed in the application. Such a prior document of prior publication must contain information about the invention of the patentee.
Prior public use
If the invention for which an application for a patent was made had been publicly used before the priority date of the claim, then it is a sufficient ground for opposition. It must be a public use rather than a secret use. When the prior use was unintentional but fortuitous, then this ground for the opposition could not be established.
Obviousness
The inventive step, or non-obviousness is one of the requirements of patentable inventions. However, if any invention is obvious and does not include any inventive step, then the application of the patent can be opposed. The controller of the patents will only refuse the application on this ground when it is unambiguous. In case of doubt or ambiguity. He may allow the grant and refer it to be handled by the High Court.
Non-patentable invention
If any invention for which an application is made falls under the list of non-patentable inventions, then the application will not be allowed by the controller.
Insufficient description
It is necessary to describe the particulars of the invention clearly and sufficiently. If the applicant does not describe the invention properly in the specification, his application will be refused. When the claims or description of the invention is inconsistent and insufficient, the application will not be allowed by the controller if he is satisfied that there is an insufficient description of the invention.
Failure to disclose foreign application
If the applicant has made any application for the same invention in any other foreign country, he is bound to disclose the particulars to the controller. If he fails to do so, his application will be opposed.
Convention application is not made within a reasonable time
A convention application has to be filed within 12 months from the date of the first application in order to protect the invention made in a convention country. This helps the applicant to get the same priority as he gets in the convention country. Failure to provide the application within a reasonable time will result in the application being refused. A convention country, as declared by the Central Government, gives privileges to Indian citizens with respect to patent applications provided that the same privileges are given to citizens of such a country in India.
Legal requirements for patentability as per WIPO
Every country has its own list of conditions that are necessary to obtain a patent. There can be no universal list of requirements in this regard, but WIPO provides some important conditions that must be fulfilled in order to obtain a patent. These are:
The invention for which a patent is sought must adhere to the condition of novelty. It must not resemble any prior art and must be new to an existing knowledge in any technical field.
It must be non-obvious and include some inventive steps. It must be such that an ordinary man with ordinary skills cannot deduce it.
It must have some application in the industry i.e., industrial application.
The subject matter of the invention must fall into the category of things that can be patented.
When the application to obtain a patent is made, all the information and details of the invention must be disclosed clearly.
Global perspective of obtaining a patent
A patent protects an invention, the creation of a product, or the process for manufacturing an existing product with new technologies. The process of obtaining a patent is different in different countries.
United Kingdom
A patent certificate can be obtained in the UK in 3-5 years and the term of such a patent is 20 years. The fee for the patent application must be paid within 4 months of the application to the European Patent Office (EPO). The following are the steps to obtaining a patent in the UK:
An application for obtaining a patent must be filed within 12 months from the priority date with the EPO. It can be filed in languages like English, French and German.
All the necessary documents and the certified copy must be given within 16 months of the priority date.
The officers in EPO will review the applications and conduct a patent search on the request made at the time of filing an application.
An investigation of the patent application is conducted after a request is made within 6 months of its publication in the discovery report. A patent certificate is issued after all the processes and reviews are complete.
United States of America
A patent in the USA is issued for 20 years. A patent certificate is issued within 32 months of filing an application to obtain a patent. The procedure to obtain a patent is as follows:
An application to obtain a patent must be filed in the official language i.e. English.
All the required documents and a certified copy must be submitted within 4 months of the application.
An applicant must disclose the information related to the invention through an information disclosure statement.
If the statement is made within 3 months from the date of application, no fee is to be paid but if it is made after 3 months or if the information is already known to the foreign patent office, an additional official fee must be paid.
After the fee is paid, the officer reviews and examines the applications and grants the patent.
China
Patents in China are issued for 20 years, and the fee is to be paid at the time of registration of application. It takes 3 years to obtain a patent in China.
An application to obtain a patent must be filed with the National Intellectual Property Administration of China within 12 months of the priority date in the official language of the country.
A signed copy of the power of attorney must be submitted within 3 months of the application and the certified copy of the documents must be given within 16 months from the date of priority.
The applications are then examined formally and factually. A request to conduct an actual examination must be made within 3 years of such an application.
Any information that is not disclosed must be disclosed within 6 months.
After this, the application is reviewed thoroughly and a patent certificate is issued.
Japan
Patents in Japan are issued for 20 years, and it takes 22 months to obtain a patent certificate. The fee for the patent is to be paid within 30 days of the notice of allowance.
An application for obtaining a patent must be filed within 12 months of the priority date.
The application can be filed in any foreign language, but a translation is required to be submitted within 16 months of the application. A notice of failure will be issued by the patent office in Japan if the translation is not submitted well within time.
A certified copy of all the required documents must be submitted within 16 months.
All the applications are reviewed and examined. An original investigation can take place on the request made within 3 years of filing an application
Any person interested in the subject matter of a patent can file a protest against the patent application by paying the required fee within 6 months of the publication of the application.
Landmark judgments on patentability criteria
Bajaj Auto Ltd. v. TVS Motors Comp. Ltd (2010)
Facts
This case is related to a controversy of unauthorised use of patented technology by Bajaj auto by TVS Motors, and they tried to seek an injunction against the defendants. The court in this case tried to apply the doctrine of pith and marrow to see whether there was an actual infringement of patented technology or not.
Issue
Whether the defendants have infringed the technology that was already patented?
Judgment
The Supreme Court, while deciding the case, gave some guidelines to be followed in every IPR case. The following were the guidelines:
All the cases related to IPR must be dealt with by trial courts on a daily basis for their speedy disposal.
They must be decided within not more than 4 months from the date they have been filed.
The Madras High Court then finally gave judgment that Bajaj Auto does have a patent over DTS-i technology and the defendants, TVS Motors, cannot use it. If they do, they have to face the consequences for infringing a patent.
Novartis v. Union of India (2013)
Facts
In this case, a company called Novartis applied to obtain a patent for a drug named ‘Gleevec’ but the application was rejected by the Patents Controller and the Indian Patents Office. All the rejections were challenged and opposed by the company in the Supreme Court.
Issue
Whether the application to obtain the patent for ‘Gleevec’ could be rejected or not, and whether the reasons for rejection were justified.
Judgment
The Supreme Court in this case held that the drug was a result of some modifications to an already existing drug in the market, which is even used by people. It did not fulfil the requirement of novelty nor proved therapeutic efficacy according to Section 3(d) of the Patents Act, 1970. Thus, a mere discovery or modification to an existing product can not be patented.
Koninklijke Philips Electronics N.V. v. Rajesh Bansal and ors. (2016)
Facts
The plaintiff filed a suit against the defendants for infringing upon a patented technology used by the plaintiffs in their DVDs. The defendants, on the other hand, opposed the allegations, saying that there had been no infringement on their part.
Issue
Whether there has been any infringement of patents on the part of defendants?
Judgment
The Court in this case observed that the defendants used EFM and technology of demodulation in their products, which was used by the plaintiffs in DVDs and was patented. This amounted to an infringement of the plaintiff’s patent on technology used in DVDs. The Court held the defendants liable and ordered them to pay an amount of Rs 5 lakhs as compensation to the plaintiffs.
Conclusion
Any creation, invention, idea or artistic work which is a result of the intellect of any person falls within the ambit of intellectual property and the rights conferred upon such person for his creation, work, idea or invention are known as intellectual property rights. Patents are a kind of intellectual property. Any invention that results in the production of a new product or service or the manufacturing of an already existing product through new means and technology can be patentable provided that it does not fall into the list of non-patentable inventions. Patents in India are governed by the Indian Patents Act, 1970, which has been amended twice in 2002 and 2005, respectively. There are certain essentials of patents that have to be fulfilled in order to get a patent for an invention. The 3 essential requirements are novelty or newness, utility or usefulness (capability of industrial application) and non-obviousness. However, there are certain grounds on which the application for the patents can be refused. These grounds have been described above in the article.
Frequently asked questions (FAQs)
What is the procedure to obtain a patent in India?
The procedure to obtain patents in India involves the following steps:
Submission of application for a patent along with particulars and proper description of the invention.
Publication and examination of the application.
If there is any ground for the opposition then the application will be rejected and the patent will not be granted.
In the event of no opposition, a patent will be granted to the applicant.
Who can apply for the patents?
Section 6 of the Act provides that the application can be made by:
Any person who claims to be the true and first inventor of an invention.
An assignee of the person claiming to be the true and first inventor.
A legal representative of the deceased who, before his death, was entitled to make such an application.
What will happen if the patent is granted to two or more persons?
According to Section 50 of the Act, if the patent is granted to two or more persons, each patentee will be entitled to an equal undivided share in the patent only if there is no agreement in this respect among the patentees. They are entitled to enjoy the rights and obligations of the patentee but neither a licence can be given to any other person nor can it be assigned without the consent of all the patentees.
Does the patent office keep information about the invention secret?
Yes, all the information of any invention for which an application for patent has been made is kept safe and away from the access of any person up to 18 months from the date of such application or priority date. Once the information is published in the official journal of the patent office after 18 months, any person can inspect or scrutinize the documents of the invention after the payment of the required fees.
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One of the defining principles of Common Law is “Ubi Jus, Ibi Remedium”. This maxim means “where there is a right, there is a remedy”. The right to a remedy has been acknowledged as a fundamental right in all legal systems historically.
Under Article 32 of the Indian constitution, every citizen of India has been given the right to seek constitutional remedy from the Supreme Court if they have been deprived of their fundamental rights. The Supreme Court is responsible for the administration of justice and also acts as the guardian of the constitution and the protector of fundamental rights. It would be meaningless to grant fundamental rights but not provide remedies for the enforcement of the rights if they are violated.
This article discusses various aspects of Article 32, including historical and philosophical grounds, as well as the latest developments.
Historical background
The Indian Constitution in Part III (Article 12 to 35) contains the Fundamental Rights. It is the charter of freedom of the citizens of India. It is what the Magna Carta was; it contains the essential freedoms of the people of India. Article 32 is a constitutional safeguard for these rights. Dr B.R Ambedkar had referred to it as “the very soul of the Constitution and the very heart of it” during the Constituent Assembly debates.
If an administrative action arbitrarily violates fundamental rights, the remedy can be sought by approaching the courts. Writ jurisdiction is conferred through Article 32 and Article 226 respectively upon the Supreme Court and High Courts. The right to constitutional remedy was considered by Dr. Bhim Rao Ambedkar as the heart and soul of the constitution. M. Patanjali Sastri, the 2nd CJI opined that the Supreme Court should regard itself “as the protector and guarantor of fundamental rights,” and should declare that “it cannot, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection..”
Writs are prerogative remedies. Article 32 is itself a Fundamental Right and the Supreme Court’s jurisdiction under article 32 is mandatory by nature and not discretionary. The writ jurisdiction of High Courts are discretionary and intrinsic for other purposes. The Scope of Article 32 in comparison to Article 226 is limited. The Supreme Court can’t be approached for any other legal right other than fundamental rights. An important feature of Article 32 is that it is not found alongside other articles that define the Supreme Court’s General Jurisdiction (Article 124-147).
A palpable question arises, can writs be maintainable against a party that ceases to act as a private entity and takes up roles of public nature? In the case of the Board of Control For Cricket vs Cricket Association Of Bihar, the Supreme Court examined the nature of public duties and functions, opening that BCCI as an organization performed “clearly public functions” as the nature of functions and duties undertaken were inherently public.
Types of writs
Five types of writs are provided under the Indian Constitution which can be issued by the Courts. They are:
Habeas Corpus
The Writ of Habeas Corpus is issued in such cases by the courts when a person is detained illegally. The literal meaning of Habeas Corpus is ‘You have the body.” Providing a remedy against illegal detention is considered as most effective. By the Writ of Habeas Corpus, the Court can command to present before the court such a person who has been detained. The Court asks to provide the grounds for detention and failure to provide reasonable and valid grounds can lead to release immediately.
The courts can take Suo moto cognizance of information received from any source and act accordingly in the public interest.
The writ cannot be successively made to different judges of the same court.
Habeas Corpus will apply if procedures, as required by law, are not followed in arrests made by the police.
Landmark judgments
In the landmark case of ADM Jabalpur v. Shivakant Shukla also popularly known as the ‘Habeas Corpus case’, it was held right to not be unlawfully detained can be suspended even during an emergency.
In the case of Kanu Sanyal v. District Magistrate, the Supreme Court held that the court can examine the legality of the detention without requiring the person detained to be produced.
In the case of Sheela Barse v. State of Maharashtra, while relaxing the traditional doctrine of locus standi, the Supreme Court allowed prayer on behalf of the detainee.
In the case of Nilabati Behera v. State of Orissa, the Supreme Court acted on the concept of compensatory jurisprudence to award the petitioner Rs. 1, 50,000 as compensation.
In the case of Bhim Singh vs. State of Jammu and Kashmir, Rudul Shah v. State of Bihar, and in the case Sebastian Hongray v. UOI it was held by the Supreme Court that in cases of violation of fundamental rights, it is necessary to compensate by way of exemplary costs.
Mandamus
The literal meaning of the word mandamus is command. The Writ of Mandamus is issued for the rightful performance of mandatory and purely ministerial duties and is issued by a superior court to a lower court or government officer to do an act or to abstain from doing an act. This order can also be given to an Inferior Tribunal, Board, Corporation, or any other type of administrative authority. This Writ of Mandamus can be issued on the following grounds:
The right must be recognized by law.
There must have been an infringement of the right of the petitioner.
The petitioner must have demanded the performance duty but there has been non-performance.
There is an absence of an effective alternative remedy.
The petitioner can show duty is owed to him by the authority and hasn’t been performed.
On the date of the petition, the right must be subsisting.
The writ of Mandamus is not issued for anticipatory injury.
The Courts can refuse to issue the Writs in the following cases:
When the right of the petitioner has lapsed.
The duty has already been fulfilled against which the writ is sought to be issued.
The writ of Mandamus will not be granted against the President or the Governor of a State.
Writs cannot be issued against a private entity, except where the State is involved with a private party.
Landmark judgments
In the cases of Praga Tools Corporation v. C.V. Imanual, and Sohanlal v. Union of India, the Supreme Court held that mandamus can lie against a private individual if he has colluded with a public authority.
In the case of Rashid Ahmad v. Municipal Board, it was held that an alternative remedy can’t be an absolute bar for issuing the writ.
In S.P. Gupta v. Union of India, it was held that a writ of Mandamus cannot be issued against the president and likewise in C.G. Govindan v. State of Gujarat, was refused against the Governor.
Prohibition
This writ is as old as common law. The writ of prohibition means ‘to forbid or to prevent’. It is only available during the pendency of the proceedings and is not an often issued writ. It is an extraordinary remedy by which a Superior Court can direct an inferior court or tribunal or a quasi-judicial body to stop them from deciding upon a case because of lack of jurisdiction. If the court or tribunal lacks jurisdiction and still adjudicates the case, it will be considered invalid because it will be in excess of the sanction of law. The rigidity of writ has liberalized over time, and may also be issued on grounds of natural justice against anybody. The writ of prohibition can be issued on these grounds:
(i) The inferior court or tribunal has overstepped its jurisdiction;
(ii) The court or tribunal is acting against natural justice;
(iii) Unconstitutionality of a Statute;
(iv) Violation of Fundamental Rights
Landmark judgments
In the case of East India Commercial Co. Ltd v. Collector of Customs writ was passed directing an inferior tribunal barring it from adjudicating on the ground that the proceeding was without or in excess of jurisdiction.
In the case of Brij Khandelwal v. India (1975) Delhi High Court refused to issue a prohibition against the Central Government from its involvement in a boundary dispute agreement with Sri Lanka stating that there is no bar on the government from performing executive and administrative duties.
In S. Govind Menon v. Union of India (1967) it was held that a writ of prohibition can be issued in both circumstances of excess jurisdiction and absence of jurisdiction.
Hari Vishnu v. Syed Ahmed Ishaque (1955) This case established a distinction between certiorari and prohibition writs. The writ of prohibition can only be filed during the pendency of proceedings.
Certiorari
Certiorari is a Latin word that means “to certify”. The writ of Certiorari is correct in nature. ‘Certiorari’ is a judicial order issued by the Supreme Court to an inferior Court or quasi-judicial or any administrative body to transfer to the Court of records for their inspection and decide on the legality and validity and if the decision is in contravention of the law. The purpose of this writ is also to take affirmative action, it is both of preventive and curative nature. The conditions necessary for the issue of the writ of certiorari are:-
The body or person has legal authority;
The action must be affecting the rights of the people.;
Having the duty to act judicially;
The action must be in excess of their jurisdiction.
Grounds for writ of certiorari:
Error of jurisdiction
Lack of jurisdiction
Excess of jurisdiction
Abuse of jurisdiction
Error of law apparent on the face of the record
Violation of principles of natural justice
Landmark judgments
In the case of Naresh S. Mirajkar v. State of Maharashtra, the High Court held that judicial orders are open to correction by the writ of certiorari and the writ is not available against the High Court.
In the case of T.C. Basappa v. T. Nagappa & Anr, it was held by the constitution bench that a writ of certiorari can be granted when a court has acted either without jurisdiction or when it acts in excess of its given jurisdiction.
In Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court has elucidated upon the meaning and scope of the writ. The court held that Certiorari is available against inferior courts and tribunals but not against equal or any higher court.
Quo Warranto
‘Quo Warranto’ means ‘by what authority‘. The Writ of ‘Quo Warranto’ inquires into the legality of the holder of a public office and their authority. The writ of Quo Warranto is a method to review the proceedings of the actions of administrative authorities who have been appointed to public office. If it is held that the office holder has no valid title, then the writ of Quo Warranto is issued to oust the office holder. Equally, it also protects anybody holding a public office from being deprived of their legal right. This writ can also be filed by who is not the aggrieved person. Conditions for Writ of Quo Warranto to be issued:
The office must be a public office to which has been wrongfully assumed.
The office was created by a statute or by the constitution itself.
The duties which arise from this office are public in nature.
The term of the office should be of permanent nature and it shouldn’t be terminable by any person or authority’s pleasure.
The person against whom the Writ is to be issued, should be in possession of the office.
Landmark judgments
In the case of Niranjan Kumar Goenka v.The University of Bihar, Muzaffarpur, the court observed that the Writ of Quo Warranto cannot be issued against such a person who is not holding a public office.
In the case of Jamalpur Arya Samaj Sabha v. Dr. D Rama, an application for the Writ of Quo Warranto was refused because it was not a public office.
In the case of H.S. Verma v. T.N. Singh, the writ of Quo Warranto was refused and C.M. the right to appoint a non-member for six months was found valid under Article 164(4).
When Supreme court can refuse remedy
The right to move to the Supreme Court is a Fundamental Right under Article 32 whenever there is an infringement of the rights. The Supreme Court has a duty to protect and guard the fundamental rights guaranteed by the Constitution. However, there are some conditions under which the Supreme Court may refuse to grant the remedy:
Inordinate Delay In Filing Petition – The Court may refuse to grant relief when there is an inordinate delaying filing the petition without reasonable explanations.
Article 32 is a Fundamental Right, in comparison Article 226 is a constitutional right that gives the High Court’s discretionary powers. Article 226 clearly states that the High Court’s effectiveness is throughout the territories in alliance to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases any Government within those territories directions, orders or writs. The scope of Article 226 is broader than Article 32 as legal rights other than fundamentals can also be enforced through it.
Grounds of difference
Article 32
Article 226
Right
Article 32 is a fundamental right under Part III.
Not a fundamental right, it is a constitutional right.
Suspension
Can be suspended if an emergency has been declared by the President under Article 359.
Cannot be suspended even at the time of emergency under Article 359.
Scope
Limited scope and applicable only for remedy if fundamental rights are violated.
Article 226 has a broader scope and is applicable if either a fundamental right or a legal right has been violated.
Territorial Jurisdiction
Pan India Territorial Jurisdiction.
Empowers the High Court to issue a writ within its local jurisdiction and has a narrower territorial jurisdiction.
Discretion Power
Rights and remedies under it can’t be refused by the Supreme Court.
Article 226 gives the High Court’s Discretionary power, hence it is up to the wisdom of the high court to issue a writ or not.
Amendment of Article 32 under Article 368
Article 32 cannot be amended as it is a part of the basic structure of the constitution. In Kesavananda Bharati v. State of Kerala, the Supreme Court established the doctrine of basic structure and stated that the ‘basic’ can’t be amended. In L. Chandra Kumar vs Union Of India and Others, the bench declared Article 32 was an integral part of basic structure. Hence, Article 368 does not apply to Article 32. If it is arbitrarily amended it will be subject to judicial review and will be rendered null and void.
Article 32A was inserted into the constitution by the 42nd Amendment in 1976. Article 32A barred reviewing of State laws unless constitutional validity of Central laws was also an issue. Subsequently, the 43rd amendment repealed Article 32A after the end of the emergency.
Public Interest Litigation under Article 32
Citizens can file a Public Interest Litigation in the interest of public welfare in the Supreme Court under Article 32. PIL under Article 32 can also be taken up suo moto by the court itself. PIL cases do not have to be cases where the rights have been violated personally. PILs give power to the public to approach the courts for remedies through judicial activism. The petition filed by the petitioner filed in the public interest must be backed by satisfactory facts and grounds, else it may be considered frivolous.
The supreme court in Siddique Kappan case of 2021, made an oral observation asking the petitioner’s reasons for not approaching the High Court first. The same Bench directed another petitioner to approach the High Court first. In a petition filed for relief of bail by P. Hemalatha owing to the health conditions of her husband, the Supreme Court directed the Bombay High Court to hear the bail plea.
The Supreme Court in a contempt notice to the Assistant Secretary of the Maharashtra Legislative Assembly expressly mentioned that the right to approach the Supreme Court is a fundamental right and that “there is no doubt that if a citizen of India is deterred in any case from approaching this Court in exercise of his right under Article 32 of the Constitution of India would amount to serious and direct interference in the administration of justice in the country”.
The procedure of filing writs petitions
For the filing of writ petitions in the Supreme Court under Article 32 the following procedure needs to be followed:
The Petitioner must approach the Supreme Court with requisite documents like identity proof, residential proof, photographs, etc.
The draft of the petition must have the name and address of the aggrieved party along with the material facts.
The Writ petition has to be sent to the Supreme Court.
The Court will set the date of hearing of the petition, on this date the court on acceptance of the petition will issue a notice to the respondent. A further date is set for the hearing of both parties.
After hearing both the parties, the court gives its judgment and grants relief.
Conclusion
The Supreme Court is made the protector and guarantor of fundamental rights. It is provided with power and controls to provide remedies if these rights are infringed upon by Article 32 of the constitution. Dr. Ambedkar rightly heralded it as the ‘Heart and Soul of the constitution. From the above-cited facts, it can be understood that Article 32 stands for the equitable principle of natural justice. Furthermore, the writs allow Public Interest Litigations to be recorded for the larger interest of the public. A People’s Constitution based on the principle of a welfare state must limit arbitrary use of power. The Writs are one of the first essentials of constitutional democracy.
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This article is written by Vrinda Nigam, a student of Amity Law School, IP University and Sujitha S pursuing law at the School of Excellence in Law, Chennai. This article elaborately discusses the national, international, and other relevant laws concerning child labour in India. Towards the end, it tries to draw a few suggestions for the effective implementation of such laws.
Table of Contents
Introduction
“Child” as defined by the Child Labour (Prohibition and Regulation) Act, 1986 is a person who has not completed the age of fourteen years. A child of such tender age is expected to play, study and be carefree about his life. But as a fact of nature, expectations hardly meet reality. Children, by will or by force are employed to work in harsh conditions and atmospheres which becomes a threat to their life. Child labour leads to underdevelopment, incomplete mental and physical development, which in turn results in retarded growth of children. Looking at the 2011 census, clearly shows that the number of child labourers in India is 10.1 million, out of which 5.6 million are boys and 4.5 million are girls. As children form the future youth of India, it is highly crucial to provide all the things they need, ranging from basic needs such as shelter, food, and clothing to social needs such as education and other things. To achieve this, appropriate legislative measures are needed in a complex society like India. With regard to India, several legislations have been enacted to control the menace of child labour. Towards the end of the article, you’ll get an idea of all the relevant legislations and regulations in India.
Important definitions of child labour
International Labour Organisation (ILO) defines the term child labour as, “work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development. It refers to work that is mentally, physically, socially or morally dangerous and harmful to children, or work whose schedule interferes with their ability to attend regular school or work that affects their ability to focus during school or experience a healthy childhood.”
UNICEF defines child labour differently. A child, suggests UNICEF, is involved in child labour activities if between 5 to 11 years of age, he or she did at least one hour of economic activity or at least 28 hours of domestic work in a week, and in case of children between 12 to 14 years of age, he or she did at least 14 hours of economic activity or at least 42 hours of economic activity and domestic work per week. UNICEF in another report suggests, “Children’s work needs to be seen as happening along a continuum, with destructive or exploitative work at one end and beneficial work – promoting or enhancing children’s development without interfering with their schooling, recreation and rest – at the other. And between these two poles are vast areas of work that need not negatively affect a child’s development.”
India’s Census 2001 office defines child labor as, “participation of a child less than 17 years of age in any economically productive activity with or without compensation, wages or profit. Such participation could be physical or mental or both. This work includes part-time help or unpaid work on the farm, family enterprise or in any other economic activity such as cultivation and milk production for sale or domestic consumption. Indian government classifies child laborers into two groups: Main workers are those who work 6 months or more per year. And marginal child workers are those who work at any time during the year but less than 6 months in a year.”
Causes of child labour
Significant causes of child employment that can be understood keeping in mind the Indian scenario, are:
POVERTY:
In developing countries it is impossible to control child labour as children have been considered as helping hand to feed their families, to support their families and to feed themselves. Due to poverty, illiteracy and unemployment parents are unable to bear the burden of feeding their children and to run their families. So, poor parents send their children for work in inhuman conditions at lower wages.
The majority of the nation’s population lives in poverty. Due to their inability to pay for their children’s education, poor parents force them to start working at a young age. In reality, they are fully aware of the impact caused by frequently losing close ones to poverty. They employ their young children in homes, businesses, and factories. They are required to work as soon as possible to raise the income of their low-income households. These choices are made just to provide a meagre life for their family. However, such choices destroy children’s physical and emotional health since they rob them of their childhood at a young age.
PREVIOUS DEBTS:
The poor economic conditions of people in india force them to borrow money. The Illiterate populations go to money lenders and sometimes mortgage their belongings in turn of the debt taken by them. But, due to insufficiency of income, debtors find it very difficult to pay back the debt and the interest. This vicious circle of poverty drags them towards working day and night for the creditor and then the debtors drag their children too in assisting them so that the debts could be paid off. Some children are forced to work in order to support their families because they are under pressure to provide food and shelter as well as to pay off debt that their parents owe. Some children, meanwhile, are sold into slavery against their will.
PROFESSIONAL NEEDS:
There are some industries such as the ‘bangle making’ industry, where delicate hands and little fingers are needed to do very minute work with extreme excellence and precision. An adult’s hands are usually not so delicate and small, so they require children to work for them and do such dangerous work with glass. This often resulted in major eye accidents of the children.
NO SPACE FOR ALTERNATIVES
According to the International Labour Organization (ILO), a significant contributing factor that pushes children into hazardous labour is a lack of available alternatives, such as affordable schools and high-quality education. Children are bound to work because they are dissatisfied and have no other means of earning. There are not enough acceptable school facilities in many localities, especially rural ones where child labour is rampant. Even when schools are available, they are frequently too far away, challenging to reach, expensive, or the quality of instruction is so low that parents question whether attending school is actually worthwhile. Even after 75 years of independence, there are still a number of children whose right to education is denied owing to their situations. This can only be managed by the effective implementation of national schemes.
SOCIAL CAUSES
The primary cause of child labour in India is also the country’s social and economic backwardness. Parents who are socially backwards do not send their children to school. As a consequence, their children are compelled into child labour. Many times, parents are unaware of different programmes for children’s education because of illiteracy. Child labour has been fostered by a lack of education, illiteracy, and, as a result, a lack of understanding of rights among children.Additionally, illiterate parents are unaware of the effects child labour has on their children. Rural households have a compulsive reason for including children in a variety of duties due to the situations of poverty and unemployment. In actuality, India’s child labour issue is still perpetuated by the remains of the feudal, zamindari system.
FAMILY TRADITION
The cultural tradition in many countries is that children follow their parent’s footsteps with regard to their profession. Subsequently, it ends in child labour as they tend to learn and practise that skill from a very young age, especially where informal economy and small household businesses exist. Similarly, the education of girls is often undervalued, leading to pressure on these girls to engage in child labour, such as domestic duties.
ADDICTION, DISEASE OR DISABILITY
Due to addiction, illness, or disability, there is often no income in the family, and the child’s wages are the only source of support. Additionally, when the population grows, unemployment rises, which has a negative effect on initiatives to prevent child labour. In order to boost the family’s income, parents are prepared to send their children to work instead of enrolling them in school.
POOR COMPLIANCE WITH LAWS
In today’s culture, regulations guarantee that people have the right to a good education, access to quality healthcare, and self-care. Every person has the right to play the game he likes, and enjoy all the means of enjoyment, and when he develops, to acquire work where he may earn well and contribute to society and nation. But child labour is still being used in India since the regulations are not being followed properly. Only rigorous adherence to the relevant laws will make it unlawful.
DISCRIMINATION BETWEEN GIRLS AND BOYS
There’s a general belief that boys are stronger than girls and that they cannot be compared on an equal footing. In our culture, there are numerous instances where girls are denied the opportunity to pursue their education. Girls who are considered as being weaker than boys are denied access to education and school. Girls are often seen working alongside their parents in households that are labourers.
OTHER MINOR CAUSES
Some shops, businesses, and factory owners hire them out of a desire for cheap labour so that they may pay them less, which amounts to hiring cheap labour. Shopkeepers and other small company owners make them work just as hard as older people while only paying them half as much. Child labour also reduces the likelihood of theft, greed, or money misappropriation. Child labour has been encouraged in India as a result of the growth of globalisation, privatisation, and consumerist culture as well as the demand for inexpensive labour and its connection to the financial needs of low-income families.
International legal framework regarding child labour
International Labour Organization (ILO) Conventions
The United Nations organisation known as the International Labour Organization was founded in 1919. In order to establish labour standards, create policies, and create programmes encouraging decent work for all women and men, the ILO brings together governments, employers, and workers representatives of 187 member States. Setting International Labour Standards in the form of Conventions and Recommendations is the ILO’s primary mode of activity. ILO Conventions Minimum Age Convention, 1973 (No.138) and Worst Forms of Child Labour Convention, 1999 (No. 182) are the two Core Conventions that directly address child labour. These two Core Conventions have been ratified by India.
The Minimum Age Convention,1973 (No. 138)
In June 1976, the Minimum Age Convention (No. 138), which was established in 1973, went into force.
By requiring nations to set a minimum age for entering into work or employment and implement national strategies for the eradication of child labour, the ILO Convention seeks to effectively abolish child labour.
As a way to eliminate child labour, the Convention compels State Parties to designate a minimum age for employment.
The minimum age required under the Convention is 15, although if limited to a short period of time, state parties may establish the minimum age at 14.
The Convention permits younger children (under the age of 15) to perform light labour.
The successful execution of the Convention is monitored and supervised by the Committee of Experts.
Every three years, state parties are required to submit a report outlining the progress of implementation.
One of the 15 basic conventions covered by the GSP regulations is the Minimum Age Convention.
The Recommendation No. 146 goes along with Convention No. 138, and emphasises the need for national plans and policies to include provisions for poverty alleviation, the promotion of decent jobs for adults so that parents are not forced to use child labour, free and compulsory education, the provision of vocational training, the expansion of social security and systems for birth registration, as well as suitable facilities for the protection of children and adolescents who work.
Worst Forms of Child Labour Convention, 1999 (No. 182)
The International Labour Organization proposed Convention 182, on June 17, 1999, in Geneva, and all of the ILO’s members overwhelmingly approved it.
To intensify the battle against child labour, Convention 182 lists the five worst types of work that must be eliminated. They are
Slavery or related activities, such as the buying, selling, or using of minors as serfs or indentured servants;
Coercive or forced labour, including the conscription of minors into armed warfare;
The solicitation, use, or offer of a minor for prostitution, the production of pornographic media, or participation in pornographic shows;
The uses, recruitment, or offer of a minor for illegal activities, particularly the manufacturing or trafficking of narcotics;
Work that might endanger children’s health, safety, or morals due to its nature or the circumstances under which it is performed.
The ILO established the International Programme on the Elimination of Child Labour (IPEC) in 1992 to assist the State members in putting these most harmful kinds of employment to a halt. The IPEC also lists instances of child labour violations where victims may receive help and specific remedies can be offered for each circumstance.
According to Recommendation No. 190, work that exposes children to physical, psychological, or sexual abuse, work underground, underwater, at dangerous heights, or in confined spaces, work with hazardous machinery, equipment, and tools; or carrying heavy loads; exposure to hazardous substances, agents, or processes; or exposure to temperatures, noise levels, or vibrations that are harmful to health are all recommended to be included in any definition of ‘hazardous work.’
Declaration of Rights of Child, 1959
The Geneva Declaration, a historic declaration established by the League of Nations in 1924, was the first to acknowledge and recognise the reality of children’s rights and the responsibilities of adults to children. After World War II, the United Nations (UN) was established. The Geneva Declaration, however, had to be built upon as a result of the progress of rights following the ratification of the Universal Declaration of Human Rights in 1948. To address the idea that mankind owes the Child the best that it has to provide, they decided to develop a second Declaration of the Rights of the Child. The Declaration of the Rights of the Child (1959) was unanimously adopted by all 78 members of the United Nations General Assembly on November 20, 1959, in Resolution 1386 (XIV). The primary principles are outlined in the Declaration of the Rights of the Child including
The freedom from discrimination based on one’s race, religion, or national origin.
The right to extra protection for a child’s social, emotional, and physical growth.
The right to one’s name and country of origin.
The right to a healthy diet, a decent place to live, and access to healthcare.
When a child has a physical or mental disability, they are entitled to special education and care.
The right to free recreation and instruction.
The right to get aid among the first in all situations.
The freedom from all kinds of abuse, brutality, and exploitation.
The right to be raised in an environment that values compassion, tolerance, intercultural friendliness, and global brotherhood.
United Nations Convention on the Rights of the Child (UNCRC), 1989
The UNCRC is a human rights treaty that establishes children’s political, civil, economic, social, cultural, and other rights, which the members must abide by. The Convention has 54 articles that outline numerous children’s rights as well as the actions that governments should take to ensure that these rights are available to children. In 1989, the United Nations approved the CRC. After getting the required 20 ratifications, it became effective in 1990. All UN members have approved it, with the exception of the US. All parties are obligated under the convention’s provisions to make sure that children’s fundamental needs are met and that they can realise their full potential.
Types of child labour
Industrial child labour
Children under the legal age of 18 are most frequently employed in the industrial sector in India. Over 10 million children, including over 4.5 million girls, between the ages of 5 and 14 labour in unorganized sectors.
Some of the major employers of children are small businesses, such as the garment industry, brick kilns, agriculture, fireworks industries, diamond industries, etc. Such businesses occasionally run out of people’s homes, which makes it challenging for the government to take necessary action.
One of the largest and most prominent employers of children in India is the unorganized industry. Children can be easily spotted working on roadside dhabas and cafes, tea stalls, or grocery stores. Here, children are preferred since they are manageable and simple to fire.
Domestic child labour
In India, 74% of child domestic workers in India are said to be between the age group of 12 to 16. They include both boys and girls who work as domestic help for rich families to take care of their daily chores.
At a time when they ought to be in school and playing with friends, these children have no choice but to help other families out. In most cases, the primary cause is poverty.
Typically, parents consent in the hopes of receiving financial support and a secure home for their children. Most of the domestic employees in the statistics are girls, and nearly 20% of all domestic workers hired are under the age of 14.
These children labour for the family as live-in servants, doing chores including cooking, cleaning, taking care of the family’s pets or young ones, and other duties.
Bonded child labour
A child who is forced to work as a slave to pay off his parents’ or guardian’s debt is said to be engaged in bonded child labour.
Although the prevalence of bonded child labour has significantly decreased in recent years as a result of strong government oversight and legislation outlawing it, it still occurs covertly in outlying areas.
Children who live in rural areas and work in agriculture are more likely to be subjected to this kind of labour. Poor farmers who are heavily indebted to lenders sometimes agree to hire their siblings as labourers for rich lenders.
Up to the last ten years, there were thousands of bound labourers employed in a variety of businesses, but today those numbers have sharply declined, and the government asserts that there are no longer any bonded child labourers.
Legal age for working in India
Except for some family-based jobs, hiring minors under the age of 14 for any type of labour is an offence that carries a maximum of 2-year imprisonment. Adolescents between the ages of 14 and 18 are not permitted to work in any dangerous jobs. The Child Labour (Prohibition and Regulation) Amendment Bill, 2012 allows for the punishment of both the parents and the hired child.
Children under 14 years of age
Children under the age of 14 are not allowed to work in any profession or process, nor are they allowed to be hired. However, if a child assists his or her family or family business (which is not a dangerous activity), after school or during a break, this limitation won’t apply. A child’s family includes their mother, father, brother, sister, mother’s sister, father’s sister, and all of their grandparents.
Additionally, if certain restrictions and safety precautions are met, a child under the age of 14 may work as an artist in the audio-visual entertainment sector, including commercials, movies, television series, and any other kind of entertainment or sport excluding the circus.
Adolescents – 14 to 18 years of age
Adolescents are permitted to engage in non-hazardous activities and procedures under the Child Labour (Prevention and Regulation) Amendment Act. The company must meet the following requirements before hiring an adolescent:
Every day’s work schedule should be established such that no segment of time is more than three hours.
After working for three hours, the adolescent has to take a break for at least an hour.
An adolescent is only allowed to work for a total of six hours each day, not counting any waiting time.
Adolescents are not permitted to work from 7 p.m. to 8 a.m.
They cannot be forced to put in extra hours.
They are not allowed to work simultaneously in more than one place of enterprise.
Adolescents must receive a full day of holiday each week.
The rules for employment of adolescents
All employers who hire adolescents are required to keep a register with the following details:
Name and birthdate of each teenager hired and given permission to work.
Hours and work periods that adolescents work during, as well as the rest times to which they are entitled.
The type of employment that they do.
In addition to the aforementioned register, the owner of the business must provide the local inspector with the following details within 30 days after hiring or allowing an adolescent to work there:
Name and location of the business.
Name of the person really in charge of running the business.
Address where correspondence about the establishment should be sent.
Type of work or procedure performed in the establishment.
Child labour laws in India
When in the 20th Century, child labour became so prominent that news of factory hazards and mishappenings taking innocent children’s life, flashed all around in the newspapers, then was the time, a need for legislation and statutes were felt to prohibit the mal practice of child labour. Today, there are sufficient statutes condemning and prohibiting child labour such as:
The Factories Act of 1948: The Act prohibits the employment of children below the age of 14 years in any factory. The law also placed rules on who, when and how long can pre-adults aged 15–18 years be employed in any factory.
The Mines Act of 1952: The Act prohibits the employment of children below 18 years of age in a mine. Mining being one of the most dangerous occuptions, which in the past has led to many major accidents taking life of children is completely banned for them.
The Child Labour (Prohibition and Regulation) Act of 1986: The Act prohibits the employment of children below the age of 14 years in hazardous occupations identified in a list by the law. The list was expanded in 2006, and again in 2008.
The Juvenile Justice (Care and Protection) of Children Act of 2000: This law made it a crime, punishable with a prison term, for anyone to procure or employ a child in any hazardous employment or in bondage. This act provides punishment to those who act in contravention to the previous acts by employing children to work.
TheRight of Children to Free and Compulsory Education Act of 2009: The law mandates free and compulsory education to all children aged 6 to 14 years. This legislation also mandated that 25 percent of seats in every private school must be allocated for children from disadvantaged groups and physically challenged children.
National framework regarding child labour
Constitutional provisions involving child labour in India
Compulsory education
According to Article 21(A) of the Indian Constitution, all children between the ages of 6 and 14 must get free and compulsory education.
Prohibition of traffic in human beings and forced labour
Article 23 prohibits traffic in human beings and begar, and other forms of forced labour are prohibited, and anyone found in violation of this faces legal consequences.
Prohibition of employment of children in factories
Further, Article 24 expressly forbids the employment of minors under the age of 14 in hazardous factories that could bring them long-term bodily and mental harm.
Prevention from coercive factors
The directive principles of state policy in Article 39(e) declare that citizens should not be coerced by economic need to engage in occupations that are inappropriate for their age or physical capacity or exploit the health and strength of employees, men and women, and children at a vulnerable age.
Fundamental duty
According to Article 51A(k) of the Constitution, which is a part of the Directive Principles of State Policy (DPSP), every individual, including parents and guardians of children, has a basic responsibility to give their offspring opportunities for education between the ages of 6 and 14.
Duty of the state to raise the level of nutrition
As per Article 47, the State is required to enhance the standard of living, the level of nutrition, and public health.
Protection from exploitation
According to Article 39(f), children must be safeguarded from exploitation and other abandonment. They must also be given the chance and resources to grow up in a healthy way, with freedom and dignity. The state has been given the mandate to increase the bar for living conditions, food quality, and public health.
Child care
By attempting to entrust programmes of women and child development to panchayat (item 25 of Schedule 11), in addition to education (item 17), family welfare (item 25), health and sanitation (item 23), and other items with a bearing on the welfare of children, Article 243G read with Schedule 11 seeks to institutionalise child care.
Domestic Acts related to child labour
Minimum wages Act, 1948
The Minimum Wages Act, (1948) establishes minimum pay rates for a number of jobs that have been identified by the relevant government and are included in the schedule of the Act. The Act established minimum wage rates for adults, adolescents, and children.
Plantation Labour Act, 1951
According to the Plantation Labour Act, 1951, a child (under the age of 14) or an adolescent (aged 15–18) cannot be hired for work unless a doctor certifies that they are healthy enough to do so. A certifying surgeon who has determined that the subject of his examination is fit to work as a child or as an adolescent can issue the certificate of fitness. This Act establishes that housing, medical care, and recreational facilities are all the responsibility of the employer.
Merchant Shipping Act, 1958
The Merchant Shipping Act , 1958 forbids the employment of children under the age of 15 in a ship, with the exception of a school ship or training ship, a ship governed by family, a home trade ship of fewer than 200 tonnes gross, or a ship where the child will be employed for a meagre wage and be under the supervision of his father or another nearby adult male relative.
The Beedi and Cigar Workers (Conditions of Employment) Act, 1966
The Beedi and Cigar Workers (Conditions of Employment) Act, passed in 1966, applies to all industrial facilities where any manufacturing activity related to the production of beedis, cigars, or both is now being done or is typically done, with or without the use of power. The Act forbids the employment of children under the age of 14 in any such establishment. Children between the ages of 14 and 18 are not allowed to work between the hours of 7 p.m. and 6 a.m.
The Schedule to the Act forbids the employment of children in 57 jobs and 13 activities.
A Technical Advisory Committee is established under the Act to provide recommendations for the addition of new jobs and operations to the Schedule.
All jobs and activities that are not expressly forbidden by the Act have their work conditions governed by the Act (Part III).
Anyone found guilty of hiring a child in violation of Section 3 of the Act faces a sentence of imprisonment for a term that must not be less than three months but may go as long as one year, and a fine that must not be less than Rs 10,000 but may go as high as Rs 20,000, or a combination of the two.
The provisions are put into effect in each of their respective jurisdictions by the Central and State Governments.
Child Labour (Prohibition & Regulation) Amendment Act, 2016
The Child labour (Prohibition & Regulation) Amendment Act, 2016, which the government passed, went into effect on January 1, 2016. The Amendment Act explicitly forbids hiring anybody under the age of 14. Additionally, the amendment forbids hiring adolescents between the ages of 14 and 18 for risky jobs and procedures and restricts their working conditions in cases where it is not. The change also makes it a crime for businesses to hire any child or adolescent in violation of the Act, increasing the severity of the penalties for such violations.The amendment gives the competent Government the authority to provide a District Magistrate with the requisite powers and impose the appropriate responsibilities in order to accomplish the efficient implementation of the provisions. In order to ensure the Act is implemented effectively, the State Action Plan has also been distributed to all States and UTs.
Hazardous occupations
Part III of ‘The Child Labour (Prohibition and Regulation) Act of 1986 provides for the ‘Prohibition of employment of children in certain occupations and processes’. The Schedule gives a list of hazardous occupations in two parts, via; A and B
Part A provides that, No child shall be employed or permitted to work in any of the following occupations:
Transport of passengers, goods; or mails by railway
Cinder picking, clearing of an ash pit or building operation in the railway premise.
Work in a catering establishment at a railway station, involving the movement of vendor or any other employee of the establishment from one platform to another or into or out of a moving train.
Work relating to the construction of railway station or with any other work where such work is done in close proximity to or between the railway lines.
The port authority within the limits of any port.
Work relating to selling of crackers and fireworks in shops with temporary licenses
Abattoirs/slaughter Houses
Automobile workshops and garages.
Foundries
Handling of taxies or inflammable substance or explosives
Handloom and power loom industry
Mines (Underground and under water) and collieries
Plastic units and Fiber glass workshop.
Employment of children and domestic workers or servants;
Employment of children in dhabas ( roadside eateries), restaurants, hotels, motels, tea shops, resorts, spas or other recreational centres;
Diving;
Circus;
Caring for Elephants.
Part B provides that, No child shall be employed or permitted to work in any of the following workshop wherein any of the following processes is carried on.
Electroplating;
Graphite powdering and incidental processing;
Grinding or glazing of metals;
Diamond cutting and polishing;
Extraction of slate from mines;
Rag picking and scavenging.
Processes involving exposure to excessive heat (e.g. working near the furnace) and cold;
Mechanised fishing;
Food Processing;
Beverage Industry;
Timber handling and loading;
Mechanical Lumbering.
Warehousing;
Processes involving exposure to free silica such as slate, pencil industry, stone grinding, slate stone mining, stone quarries, and agate industry.
Beedi making;
Carpet Weaving;
Cement manufacture including bagging of cement;
Cloth printing, dyeing and weaving;
Manufacture of matches, explosive and fireworks;
Mica cutting and splitting;
Shellac manufacture;
Soap manufacture;
Tanning;
Wool cleaning;
Building and construction industry;
Manufacture of slate pencils (including packing);
Manufacture of products of agats;
Manufacturing processes using toxic metals and substances such as lead, mercury, manganese, chromium, cadmium, benzene, pesticides and asbestos;
All Hazardous prossess an defined in section 2(cb) and dangerous operations as notified in ruler made under section 87 of the Factories Act 1948;
Printing (as defined in section 2(k) of the factories Act 1948;
Cashew and cashew nut descaling and processing;
Soldering process in electronic industries;
Incense Stick (Agarbathi) manufacturing;
Automobile repairs and maintenance (namely welding lather work , dent beating and printing);
Brick kilns and Roof files units;
Cotton ginning and processing and production of hosiery goods;
Detergent manufacturing;
Fabrication workshop (ferrous and non-ferrous);
Gem cutting and polishing;
Handling of chromites and manganies ores;
Jute textile manufacture and of coir making;
Lime kilns and manufacture of lime;
Lock making;
Manufacturing process having exposure to lead such as primary and secondary smelting, welding etc. ( See item 30 of part B process);
Manufacture of glass, glass ware including bangles fluorescent tubes bulbs and other similar glass products;
Manufacturing of cement pipes, cement products, and other related work;
Manufacture of dyes and dye stuff;
Manufacturing or handling of pesticides and insecticides;
Manufacturing or processing and handling of corrosive and toxic substances, metal cleaning and photo enlarging and soldering processes in electronic industry;
Manufacturing of burning coal and coal briquette;
Manufacturing of sports goods involving to synthetic materials, chemicals and leather;
Moulding and processing of fiberglass and plastics;
Oil expelling and refinery;
Paper making;
Potteries and ceramic industry;
Polishing, moulding, cutting welding and manufacture of brass goods in all forms;
Process in agriculture where tractors, threshing and harvesting machines are used and chabt cutting;
Saw mill all process;
Sericulture processing;
Skinning dyeing and process for manufacturing of leather and leather products;
Stone breaking and stone crushing;
Tobacco processing including manufacturing of tobacco, tobacco paste and handling of tobacco in any form;
Tyre making repairing, re-trading and graphite beneficiation;
Utensils making polishing and metal buffing;
Zari Making (all process).
Hours of period and work
No child shall be required or permitted to work in any establishment in excess of number of hours prescribed (Section-7)
The period of work on each day shall not exceed three hours and no child shall work for more than three hours before he has had an interval for rest for at least one hour. No child shall be permitted or required to work between 7 p.m. and 8 a.m.
No child shall be required or permitted to work overtime. (Section-7).
Penalties
Violations under Section-3 shall be punishable with imprisonment which shall not be less than three months which may extend to one year or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with both. Continuing offence under section (3) shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years. Any other violations under the Act shall be punishable with simple imprisonment, which may extend to one month or with fine, which may extend to ten thousand rupees or with both.
Recommendation committees related to child labour
Gurupadaswamy Committee
The Government established the first committee, known as the Gurupadaswamy Committee, in 1979 to investigate the problem of child labour and provide solutions. The Committee thoroughly investigated the issue and provided some comprehensive recommendations. It was noted that attempts to end child labour through legal means would not be feasible as long as poverty persisted since it would be impossible to completely eradicate child labour. The Committee believed that, given the situation, the only viable option was to outlaw child labour in dangerous occupations while regulating and improving working conditions elsewhere. It suggested that in order to address the issues posed by working children, different policy approaches were necessary. The Child labour (Prohibition & Regulation) Act was passed in 1986 as a result of the Gurupadaswamy Committee’s recommendations. The Act restricts the working conditions in several jobs and industries and forbids the employment of children in certain dangerous occupations.
National Commission for Protection of Child Rights
In accordance with the Commissions for Protection of Child Rights Act, 2005, an Act of Parliament, the National Commission for the Protection of Child Rights (NCPCR) was established in March 2007. The National Commission for the Protection of Child Rights is a statutory agency that reports to the Government of India, specifically the Ministry of Women & Child Development. With the aim of ensuring that all laws, policies, programmes, and administrative mechanisms are in line with the child rights paradigm as contained in the Indian Constitution and the UN Convention on the Rights of the Child, the commission was founded.
Important judicial precedents in relation to child labour
M.C Mehta v. State of Tamil Nadu and others (1996)
The Supreme Court of India issued directives regarding the eradication of child labour inM.C Mehta v. State of Tamil Nadu (1996). The main aspects of the judgement include the following:
Survey to identify children who work;
Withdrawal of children employed in hazardous industries;
Ensuring that children are educated in appropriate institutions;
Contribution of Rs. 20,000/- per child from the violating employers of children to a welfare fund to be established for this purpose;
Employment for one adult family member of the child who has been thus withdrawn from work, or if that is not practicable, a donation of Rs. 5,000/- by the state government to the welfare fund;
As long as the child is really sent to school, financial help will be provided to the families of the withdrawn children out of the interest income on the Rs. 20,000/- or 25,000/- amount put in the welfare fund;
Limiting the number of hours children may work in non-hazardous jobs so that they are guaranteed at least two hours of schooling each day and a daily maximum of six hours of labour. The concerned employer is required to cover the whole cost of schooling.
The Ministry of Labour is keeping an eye on how the Supreme Court’s directives are being carried out.
Labourers work on Salal hydro-electric project v. State of Jammu & Kashmir and Others (1983)
InLabourers work on Salal hydroelectric project v. State of Jammu & Kashmir and Others (1983), a bench of Justices P. N. Bhagwati and R. B. Misra ruled that no child under the age of 14 must be employed by any contractor or subcontractor on any factories in the projects. If any contractor or subcontractor uses underage labour, quick instructions for their break must be given right away, and a summary report must be sent regarding punishment.
People’s Union for Democratic Rights v. Union of India (1982)
In People’s Union for Democratic Rights v. Union of India (1982), it was alleged that a small number of minors under the age of 14 were among those working on the Asiad Project’s development in Delhi. It was argued that since the construction industry was not listed in the schedule of the Employment of Children Act (1938), it did not apply to children working in this industry. The Government’s claim was in no way reasonable, according to Bhagwati J. Even though the job is not directly included in the Schedule of the Employment of Children Act, 1938, children under the age of 14 shall not be engaged in construction work since it is a dangerous line of work. It was urged that the State Government take the earliest actions required to schedule the building work under the Act and make sure that Article 24 is not broken in any region of the nation.
Krishnaraj v. The Principal Secretary (2016)
In this case, the Madras High Court emphasised the critical role that the mid-day food programme plays in reducing child labour. The Tamil Nadu Government began implementing the ‘Noon Meal Scheme’ on July 1, 1982. The Court emphasised that it created a path to work with the Government and the Department of Social Welfare and Nutritious Meal Programs on a combined amount of salary/daily pay for those with lower educational qualifications. It went on to add that their main goal was to support the education of children from disadvantaged and underprivileged neighbourhoods and social groups. Additionally, it was designed to address the issues such as child labour, which had plagued the nation both before and after independence, to accomplish the objectives outlined in Article 24.
Court on its own motion v. State of NCT of Delhi (2009)
In Court on its own motion v. State of NCT of Delhi (2009), the Delhi Action Plan to Prevent Child Labour created by the National Commission for Protection of Child Rights, Government of India, has been authorised by the Delhi High Court. The Delhi High Court has further outlined the duties and responsibilities of all parties in this decision.
TMA Pai Foundation v. Union of India (2002)
In the case TMA Pai Foundation v. Union of India (2002), the Supreme Court stated that it is a parent or guardian’s fundamental responsibility to give their children access to educational opportunities. The Right of Children to Free and Compulsory Education Act of 2009, which mandates free and mandatory education for all children aged 6 to 14, was passed by the Parliament in order to codify this advancement in the area of education and recognise it as a fundamental right.
Whether this case involves A v. By way of this appeal (2016)
Efforts by Government of India to control child labour
The child labour (Prohibition and Regulation) Act 1986 prohibits the employment of children below the age of 14 years in 16 occupation and 65 processes that are hazardous to the children’s lives and health. Many states including Haryana have constituted the child labour rehabilitation –cum-welfare funds at district level and separate labour cells are being formed to address the issue. National child labour projects have been implemented by the central government in states from 1988 to provide non-formal education and pre-vocational skills. From 2001, Sarve shiksha Abhiyan has been launched to educate poor and employed children in all states. The Ministry of Women and Child Development has been providing non-formal education and vocational training. The establishment of Anganwadies is also a big step by the government for the welfare of children and their physical, mental and educational development.
National plans and schemes concerning child labour
Child Labour (Prohibition and Regulation) Amendment Rules, 2017
After significant consultation, the Government of India passed the Child Labour (Prohibition and Regulation) Amendment Rules, 2017. For the prevention, prohibition, rescue, and rehabilitation of child and adolescent workers, the Rules offer a comprehensive and detailed framework. Specific measures have been inserted into the regulations to clarify concerns relating to aid in families, family businesses, and the concept of family with regard to children. The child is not permitted to work more than five times a day and for a total of no more than three hours without a break during school hours or between the hours of 7 p.m. and 8 a.m. Additionally, it offers protection for artists who have been given permission to work under the Act in terms of working conditions and hours. To guarantee the proper execution and compliance with the Act’s provisions, the regulations include explicit provisions embodying the roles and obligations of enforcement authorities.
Right to Education Act of 2009
In accordance with Article 21A of the Indian Constitution, children in India between the ages of 6 and 14 have the right to free and compulsory education. On August 4, 2009, the Indian Parliament passed the Right of Children to Free and Compulsory Education Act, also known as the Right to Education Act (RTE). The main features include:
Free and compulsory education for all Indian children aged six to fourteen;
No child is allowed to be held back, expelled, or forced to pass a test until they’ve finished primary school;
A certificate is given to a child who completes elementary school;
It demands a set student-to-teacher ratio;
It encompasses all of India, excluding Jammu and Kashmir;
It gives economically challenged communities a 25% reservation for class one entrance in all private institutions;
Further, it imposes requirements for educational quality improvement;
The state and the Central Government split the financial burden.
National Child Labour Policy
The action plan for addressing the issue of child labour is included in the National Policy on Child Labour, August 1987. A legislative action plan is what it envisions. As per the policy, general development programmes should be focused on and coordinated to benefit children. In regions with a high concentration of child labour, initiatives should be launched to improve the welfare of working children.
The scheme was launched in 1988 as part of the National Child Labour Policy to rehabilitate child labour. The program aims to use a step-by-step approach, concentrating initially on the rehabilitation of children involved in risky jobs and activities.
In accordance with the scheme, children who are working in dangerous activities or processes must be removed from those jobs or activities and placed in special schools until they can be mainstreamed into the regular educational system. Additionally, it requires the identification of other professions and procedures that are harmful to the health and safety of children.
National Plan of Action for Children, 2005
The National Plan of Action for Children, 2005 pledges to guarantee all children’s rights up to the age of 18. To guarantee that every child may realise his or her innate potential and develop into a healthy and productive citizen, the government should ensure all safeguards and an enabling environment for all children’s survival, growth, development, and protection. This necessitates a relationship with families, communities, the voluntary sector, civil society, and the children themselves, as well as a collective commitment and action from all levels and sectors of government.
Schemes of the department of education
Sarva Shiksha Abhiyan
The initiative known as Sarva Shiksha Abhiyan (SSA) promotes universal elementary education. This initiative aims to provide all children with the chance to develop their human potential by offering them locally owned, high-quality education in a mission mode. Atal Bihari Vajpayee, a former Indian Prime Minister, invented the programme. By 2010, it wanted to educate every child between the ages of 6 and 14.
Midday Meal Scheme
The Midday Meal Scheme is an Indian school meal programme created to improve the nutritional status of students across the country. The programme provides elementary and upper primary students in government, government-aided, local body education centres, and schools funded by the Sarva Shiksha Abhiyan and National Child Labour Project schools managed by the ministry of labour with free meals on working days. The Midday Meal Scheme is the biggest programme of its type in the world, feeding 120 million kids in more than 1.27 million schools and Education Guarantee Scheme locations. The noon meal programme was originally introduced in the state of Tamil Nadu.
Schemes of the Ministry of Women & Child Development
Integrated Child Protection Scheme
The Union Ministry of Women and Child Development developed the Integrated Child Protection Scheme (ICPS), a programme that was centrally supported in 2009–2010. The goal of ICPS is to provide children who require care and protection with a safe and secure environment. The plan aims to increase emergency outreach, institutional care, family and community-based care, counselling, and support service systems at the national, regional, state, and district levels by institutionalising key services.
Balika Samridhi Yojana
In 1997, the Central Government announced the Balika Samridhi Yojana. In order to enable the empowerment of female children in the nation, this was done in accordance with the plan for women and child development. It is well acknowledged to be a significant project for promoting female child maternity and education. All girl children in Indian homes who, regrettably, live below the poverty line will be covered by the programme, both in urban and rural regions.
Other social security schemes
Rashtriya Swasthya Bima Yojana
The government-run Rashtriya Swasthya Bima Yojana, sometimes known as the “National Health Insurance Programme,” provides health insurance to the underprivileged in India. The program’s goal is to give unrecognised sector employees who fall under the BPL category health insurance coverage. This programme will also benefit the members of their families.
National Family Benefit Scheme
For the protection of the family, the Central Government established the National Family Benefit Scheme. The major goal of adopting this programme is to provide bereaved families with financial help in the form of a lump sum payment in the event that the principal breadwinner of a family living below the poverty line passes away inadvertently. Basically, this programme is reserved for individuals who are below the poverty line, so that if the breadwinner passes away for any cause, the government may offer financial support to these families to help them get back on track and maintain stability.
Recommendations and suggestions for the effective implementation of child labour laws
Suggestions for various organisations
The organisations working on various topics should become involved in the campaign by prioritising the issue of child labour. The advertising should emphasise how to apply numerous laws in an efficient manner. Change at the local, provincial, national, and/or worldwide levels should be the goal of the plans.
The organisations must tackle the problem of budget analysis and advocate for funding to execute the policy. Majority of the time, policies are developed without enough budgetary support, which has an impact on the implementation process. Budget analysis is a technique for lobbying that helps the public comprehend the government’s policy goals, which will have a stronger effect on individuals with limited political clout.
NGOs and NPOs
NGOs and non-profit organisations can conduct a comprehensive campaign to disseminate among the civil society organisations through networking to catch the attention of the policymakers, implementers, and community.
Suggestions for government
Poverty eradication
Poverty has an evident association with child labour. Programs to eradicate poverty are essentially given the widening divide between the wealthy and the poor. The development process should include the participation of the poor and the needy. Pro-poor, inclusive policies must be developed and put into effect with a strong political will.
Community action
There is a need to raise public understanding about the need of commencing community action to encourage school enrollment. Education promotes a child’s cognitive, emotional, and social development, and it goes without saying that child labour frequently severely impairs education. We must foster an environment where the community as a whole will no longer accept child labour in any capacity. In order for impoverished parents to become prepared to make the sacrifices necessary to ensure that their children receive an education, there is a need to raise awareness among them.
Implementation by local bodies
The institutions of governance at the local level may keep an eye on the policies, programmes, and legislation to make sure that the rights and interests of children are protected. The Gram Panchayat can responsibly identify the projects in the Gram Panchayat regions and distribute job opportunities to the underprivileged. Additionally, it may guarantee that children are involved in and have a say in choices that influence their lives. By actively participating in the Gram Sabha, community monitoring systems must be established.
Conclusion
If awareness about the cons of child labour is spread across the nation and strict policing of implementation of existing laws are done, India can combat the issue of child labour. Every individual must understand how important it is for the children to grow and study, as they are the ones who will shape the future of the nation.
FAQs
Is working under 18 illegal in India?
Hiring children below the age of 14 years for any kind of work, other than in certain family-based work, is a cognizable offence and will attract a jail term of up to 2 years. Adolescents between the age of 14 – 18 years cannot be employed in any hazardous occupation.
What is the child labour age limit in India?
Article 24 talks about the prohibition of the employment of children in factories, etc. No child below the age of 14 years shall be employed in work in any factory or mine or engaged in any other hazardous employment.
What effects does the pandemic have on the menace of child labour?
All of the measures made to eliminate child labour were undone in the present COVID-19 pandemic scenario when schools are shuttered and parents are unable to find work to support their families. More than 1.5 billion children lost out on attending school as a result of COVID-19 limitations, according to UNICEF. The global labour market has been completely destroyed as a result.
What is the definition of child labour given by ILO?
According to ILO, child labour is defined as “work that harms children’s physical and mental development, and robs them of their youth, their potential, and their dignity.”
How many children are employed as child labourers in India?
Around 12.9 million Indian children between the ages of 7 and 17 are working, according to the ILO. Children who labour or do unpaid labour are less likely to attend school regularly or at all, which keeps them in a cycle of poverty.
How many children are employed as child labourers globally?
According to a recent assessment by the International Labour Organization and UNICEF, there are now 160 million children working as minors globally, an increase of 8.4 million children in the past four years, with millions more in danger owing to COVID-19’s effects.
Is child labour banned in India?
The Constitution of India in the Fundamental Rights and the Directive Principles of State Policy prohibits child labour below the age of 14 years in any factory or mine or castle or engaged in any other hazardous employment (Article 24).
What effects does child labour have in India?
Children who work are denied the opportunity to attend school, which perpetuates a successive poverty cycle. According to census 2011 data, there are 10.1 million child labourers in India, 5.6 million of whom are boys and 4.5 million of whom are girls.
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This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. The article explains Section 270A of Income Tax Act, its applicability, and other provisions related to it.
It has been published by Rachit Garg.
Table of Contents
Introduction
With urbanisation and industrialisation, there has been a tremendous increase in the salaries and incomes of people. As a result of that, they have to pay an income tax on their income. The Income Tax Act, 1961, deals with the provisions and procedures for paying tax. But the Finance Act, 2016 has brought several changes to the Act, which include replacing the old tax regime with a new tax regime under Section 115 BAC of the Act. It has also introduced a new provision, i.e., Section 270A, that deals with penalties in cases where the income has been underreported or misreported. Earlier, Section 271(1)(c) gave the penalties if the income had not been furnished properly or concealed in any way. Like this, the Section has introduced various other changes and made the system of paying tax more reliable and easy. The changes brought by the Section have been explained in detail further in the article.
Applicability of Section 270A of Income Tax Act
This Section applies to a person who has either misrepresented or underreported his income. The following persons can impose such a penalty in a case:
Assessing officer or,
Commissioner (appeals), or
Principal commissioner or,
Commissioner
However, the question of whether to impose a penalty or not is decided differently in each case. Earlier, a penalty was imposed if the income was concealed or false or inaccurate income was given. These two grounds were treated separately and subject to the satisfaction of the officer. But now the only ground of penalty for ‘under-reported income’ is not subject to the satisfaction of the officer but has to be determined by the facts and circumstances of a case in the due course of its proceedings.
Under-reported income under Section 270A of Income Tax Act
Meaning
The Section has not defined the word ‘under-reported’ but provided the instances under which an income shall be deemed to be under-reported. It provides 7 such situations, out of which 3 relate to normal income and the other 3 relate to income which is assessed under the provisions of MAT/AMT. The circumstances that amount to underreporting of income are as follows:
In case of normal income
The income is said to be underreported if:
The assessed income is greater than the income determined as per Section 143 of the Act when the return is filed.
When the return of income has not been filed then the assessed income which is greater than the maximum and not chargeable to tax will be counted as under-reported income.
If the income has been reassessed, then such income that is greater than the assessed income will be under-reported income.
Income assessed under Section 115JB and 115JC
In the event that the income has been determined according to Section 115JB and Section 115JC, the following income will be counted as under-reported income:
The total assessed income is greater than that assessed as per Section 143 of the Act.
The assessed income is greater than the maximum income and is not chargeable to tax.
The total reassessed income is greater than the assessed income.
Other than these, there is one more income which is counted as under-reported income. If the assessed income or reassessed income has the ability to reduce the loss or convert it to income, then such income will also be called under-reported income.
Intangible additions
According to sub-section 4 of Section 270A, if the source of any receipt, investment, or deposit is claimed to be such an amount which is deducted or added to the income while the losses were computed in any year prior to the assessment year in which such receipt or deposit appeared and no penalty was imposed, then the under-reported income will be the amount added to cover up this receipt, deposit, or investment. Since these are additional amounts, they are known as intangible additions.
According to sub-section 5, the preceding year in sub-section 4 means:
An immediate previous year to the year in which such a receipt, deposit, or investment appeared is called the first preceding year.
When the amount in the first preceding year is not sufficient, then the year immediately before the first preceding year will be considered and so on.
How to calculate under-reported income
The process to determine the penalty on the under-reported income is given under sub-section 3 of Section 270 A. It can be divided into the following 3 cases:
Normal income
Income determined under Sections 115JB and 115JC.
Assessed or reassessed income can reduce the loss.
Normal income
If it is the first assessment of income and a return is filed, then the under-reported will be the difference between assessed income and income determined as per Section 143 of the Act. For example – a company has filed its return for Rs. 20 lakhs and claimed exemption under Section 80IAB of the Act for Rupees 35 lakhs, but it was not allowed due to some fault in the application, and so the processing was done for Rupees 55 lakhs, but the assessment according to Section 143 was Rupees 65 lakhs. Thus, the under-reported income will be 65-55=10 lakh rupees.
In the event that no return is filed for the first assessment, the under-reported income will be the assessed amount for companies and firms, but for others it will be the difference between the assessed income and the maximum income which is not chargeable to tax.
If the income has already been assessed, the under-reported income will be the difference between the reassessed income and the assessed income of the previous order.
Income determined under Section 115JB and 115JC
The under-reported income, in this case, can be easily calculated with the help of a formula:
(A-B) + (C-D) where,
A is the income assessed according to other general provisions.
B is the income which would have been chargeable if the assessed income was reduced by under-reported income.
C is the income which is calculated according to the above-mentioned sections.
D is the income which would have been chargeable if the assessed income under Sections 115JB and 115JC was reduced by under-reported income.
Income can reduce the loss
If the assessed or reassessed income can reduce the loss or convert it into income, then the under-reported income in this case will be the difference between the loss that has been claimed and the assessed or reassessed income.
Tax on under-reported income
Sub-section 10 of Section 270 A provides that tax payable on under-reported income is 50% or 200%. This will be calculated in the following ways:
If no return has been filed and the income is assessed for the first time, then the tax on under-reported income as a maximum not chargeable to tax will be calculated as if it was the total income.
If the total income is assessed according to Section 143 or reassessed as per the previous order, then the tax will be calculated as if it was the total income.
In other situations, the tax will be calculated by a formula (X-Y) where,
X is the tax calculated on the under-reported income which is determined according to Section 143 or assessed according to any previous order.
Y is the tax on the total income determined as per Section 143 or assessed as per any previous order.
Exemption from under-reported income
The Section provides certain circumstances under which the income will be exempted from being counted as under-reported income. These are:
If the assessee makes an application giving a proper explanation and material facts of the income and the officer is satisfied with the explanation provided that it is bonafide, the income will not be considered as under-reported.
If the under-reported income is calculated with the help of estimation and the method used is not reliable and does not provide a fixed income, then such an income cannot be considered as underreported.
If the under-reported income has been determined by the assessee and he has himself estimated a lower addition on an issue or disclosed all the material facts related to disallowance, then such income will not be considered.
The under-reported income in transfer pricing cases can be exempted only if:
All the documents have been prepared by the assignee as given in Section 92D of the Act.
The assignee has disclosed all the international transactions.
Provided all the material facts related to such transactions.
During search cases, the amount that is undisclosed and the penalty that is levied under Section 271AAB are also exempt.
Misreported income under Section 270A of Income Tax Act
According to Section 270A of the Act, if the income is under-reported the quantum of the penalty will be 50% of the tax that is payable, but if it is due to misreported income, then the quantum will be 200%. The Section has given the list of under-reported incomes that will be considered misreported under sub-section 9. These are:
Income that is suppressed or misrepresented.
Income in which the claim of expenditure has not been substantiated by any evidence.
Income that has not disclosed any international transactions if the provisions of Chapter X of the Act apply to such income.
If the investments have not been recorded in the books of account, then such income will be considered misreported.
False entry or record in books of account.
If there is a bearing on the total income but it has not been recorded in the books of account then such income will not be considered.
Calculation of penalty and tax on under-reported and misreported income
Let us understand this with the help of an example. Supposed ABC company filed for the return, and the case has been completed as per Section 143 of the Act for an annual year. The tax on the return is 31.20%. Details of the income are given below:
Details
Income according to normal provisions
Income according to MAT
income/profit
800000
2200000
Misreporting income (addition)
50000
50000
Under-reporting income (addition)
60000
0
Under-reported income for deferred tax to be calculated according to MAT.
0
70000
Total
910000
2320000
Step 1 – calculation of under-reported income
A (total income according to normal provisions)
910000
B (total – under-reported – misreported)
800000
C (profit according to assessment order)
2320000
D (profit – under-reported except one that has already been considered in normal provisions – misreported – MAT)
2250000
(A-B) + (C-D)
180000
Step 2 – calculate the tax on under-reported income at the rate of 31.20%.
Under-reported
Misreported
60000
50000
70000
0
Total = 130000
Total = 50000
Tax: 130000 * 31.20 = 40560
Tax: 50000 * 31.20 = 15600
Step 3 – calculate the total penalty
Under-reported income
50% of 40560
20280
Misreported
200% of 15600
31200
Total penalty
51480
Immunity from penalty under Section 270A of Income Tax Act
A person can seek immunity from the penalty under Section 270A and prosecution under Section 276C or Section 276CC by filing an application and following the procedure given under Section 270AA of the Act. A person can seek immunity in the following ways:
He must make an application to the assessing officer to grant immunity from the penalty and proceedings within one month of the assessment order. However, the following conditions must be fulfilled:
It is necessary that the tax be paid within the specified period as given in the notice.
No appeal must be made with respect to the assessment order.
The officer, after satisfaction of all the above conditions and on the expiry of the period of appeal, grants such immunity.
The immunity can be given in the case of misreported income.
The officer can either accept or reject the application within one month after it has been received.
It is mandatory to give an opportunity to the assignee to present his case before rejecting the application.
The order of the assessing officer will be considered final.
Relevant case laws
There are, as such, no cases for Section 270A as it is newly inserted into the Act, but there are some previous precedents that still hold importance while imposing any kind of penalties under the Act. The names of the cases and their judgements are given below:
In the case of Rajeev Kumar Gupta v. CIT (1980), it was held that any authority before imposing a penalty on any person must give him an opportunity to be heard. This is also mentioned under Section 274 (1) of the Act, which makes it mandatory for the authorities while imposing the penalty on the assessee to give him an opportunity to be heard or else it will be considered as a statutory violation.
The Court in the case of Dilip N. Shroff v. CIT (2007), held that to impose any penalty on the assessee, his malafide intention must be proved. The word ‘inaccurate’ means a deliberate act or omission. Thus, mens rea is necessary to attract a penalty on the assessee. This was reiterated by the Supreme Court in the case of Reliance Petroproducts Pvt. Ltd. v. CIT (2010).
In the case of Vijay Power Generators LTD. v. ITO (2007), it was held that the material facts or evidence found in the assessing proceedings must not be ignored. It must be examined carefully to determine whether the assessee has concealed the income or part of it.
The Court in the case of CIT v. Caplin Point Laboratories Ltd. (2021), held that if the claim of any deductions or allowances has been made by the assessee based on any case law under bona fide belief but the assessing officer interpreted it differently, then in such a case there will be no penalty.
If a legal claim for taxability of a particular income under a particular head has been rejected by the assessing officer, then it is not an appropriate ground to impose a penalty on him. Mere speculation of a loss also does not attract any kind of penalty. (CIT v. Bharatesh Jain, 2010)
Conclusion
There have been a lot of changes to the Income Tax Act of 1961 because of the Finance Act of 2016. One such change is the insertion of Section 270A, which replaced Section 271(1)(c) of the Act. It has been inserted to bring objectivity, clarity, and certainty to the laws. The previous section mentioned the penalty if the income has been concealed or considered inaccurately. But now the penalty is given due to underreported income and misreported income. However, these have not been defined anywhere under the Act, but it has provided cases where the income will be considered underreported and misreported. The words of the bare act and the interpretation of the new mechanism may lead to issues and litigation which need to be resolved to make the provisions unambiguous.
Frequently Asked Questions (FAQs)
What is the situation of transfer pricing cases in under-reported income?
The under-reported income in transfer pricing cases can be exempted only if:
All the documents have been prepared by the assignee as given in Section 92D of the Act.
The assignee has disclosed all the international transactions.
Provided all the material facts related to such transactions.
Where can a person appeal against the order of an assessing officer?
A person cannot appeal against the order of the assessing officer under Section 270AA if the application has been accepted. However, if the application for immunity has been rejected, then an appeal can be made to C.I.T (appeals), but the period of making an application to the order rejecting the application will be excluded.
What is the difference between Section 271(1)(c) and Section 270A?
Section 271(1)(c) provided the provision of penalty in case the income has been concealed or considered inaccurately where it ranged from 100% to 300% but according to Section 270A, a penalty is imposed in case of underreported income or misreported income. It is 50% of the tax for underreported income and 200% of the tax for misreported income. Moreover, the penalty under the former can only be imposed up to the annual year 2016-17 but the penalty under the latter is for the annual year 2017-2018 onwards.
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This article is written by Shiwangi Singh, a law student at Banasthali University. It talks in detail about the various aspects of Section 167 CrPC, essential amendments to these sections, and important case laws regarding the same. It mainly deals with the power of police to detain an accused by following legal procedures laid down in CrPC, 1973.
Section 167 is a key part of the Code of Criminal Procedure, which states if an investigation into an offence is not completed within 24 hours and the accused is in custody, the concerned police officers shall forward the accused to the nearest Judicial Magistrate. This section entitles the magistrate to either send the accused to police custody or judicial custody while an investigation is going on. It also states that if within the stipulated time of his custody, no such substantial evidence is obtained against him in the investigation, then he can be released on default bail. The provisions of this section protect his fundamental right to personal liberty.
Section 167 is functional when an investigation has been started but has not been completed within 24 hours. It lays down a framework starting from arresting an accused and then conducting an investigation that includes interrogation, collection of evidence, prevention of evidence tampering, etc. Arrest, remand, and bail are components related to the investigation.
Section 57 of the criminal procedure says that if a person is arrested without a warrant and kept in a police officer’s custody, then he can be detained only for a reasonable period of time, which means it shall not exceed twenty-four hours. The police officials have to complete their investigation within the next 24 hours. Section 167 lays down the procedure to increase the jurisdiction of Section 57. If the investigation against a person requires more time and is not completed within twenty-four hours, then the officials have to get permission from the magistrate by stating reasonable grounds for why the accused needs to be kept for a longer time to complete the investigation. In such circumstances, the police has to approach the nearest magistrate, whether they have jurisdiction or not.
Section 167 CrPC
Chapter XII of the Criminal Procedure Code contains Section 167, which talks about the information to the police and their powers to investigate. This chapter states the legal rights of the police to carry on an investigation before a legal proceeding is launched against the accused. Whenever a person is detained under Section 167 on reasonable grounds, the courts, either under Section 482 or Section 401 of the code, cannot interfere in the matter.
Section 167 is used when the fundamental right of the accused is violated by not presenting him before a magistrate within 24 hours of his detention, as provided by Article 22(2). This Article, which is complementary to Section 57 of the CrPC, states that every person who is arrested or detained in custody shall be presented before the nearest magistrate within twenty-four hours, excluding the time which was covered in the journey from the place of arrest to the court of the magistrate, and no person shall be detained for more than twenty-four hours without the permission of the magistrate himself.
Provisions of Section 167 CrPC
It states the various provisions for different kinds of situations that arise in an investigation and also discusses the powers of the magistrate and police officials.
Procedure when the investigation is not completed within twenty-four hours
Section 167(1) – When a person is arrested and detained without a warrant, kept in police custody, and it is believed by the police officials or the investigation agency that the interrogation will not get completed within the period of twenty-four hours as fixed by Section 57, and there are appropriate reasonable grounds to believe that the evidence against the accused is reliable and well-founded, then the officer-in-charge of the police station or the police officer under whom the investigation is going on, who is not below the rank of Sub-Inspector, shall immediately without any delay, put this demand in front of the judicial magistrate for extending the period by submitting a copy of the entries that he maintains in his diary related to the case, and shall present the accused in front of the magistrate at the same time.
Section 167(2) – The magistrate to whom the accused person is forwarded under this section, whether he has the jurisdiction or not, shall try the case from time to time, and authorise the detention of the accused in such police custody as he thinks would fit, for not more than a period of fifteen days. If the magistrate has no jurisdiction for the trial of the case and considers that further detention is irrelevant, he may order the trial of the accused to be forwarded to a magistrate of higher rank who is authorised to hold the trial of the case under this section.
Powers of the magistrate under Section 167 CrPC
Section 167(2)(a) – The magistrate has the power to order the detention of the accused person, but not in police custody if he is convinced that there are suitable and reasonable grounds to detain the accused, but in any situation, the magistrate cannot order detention for a period exceeding:
Ninety days, if the accused is charged with a punishable offence that is death, life imprisonment or imprisonment for a term that is not less than ten years.
Sixty days, if the investigation is related to any other offence. After the completion of the time period of 60 days or 90 days, the accused shall be released on bail if he is able to furnish sureties. This period is calculated from the day he was detained and not from the date of arrest.
If the investigation is not completed within 90 or 60 days, then he has to be released on bail under the provisions of section 167(2).
Limitations on the powers of magistrate under Section 167 CrPC
Section 167(2)(b) – No magistrate is given the power to detain the accused in police custody under this Section unless the accused is produced before him in person for the first time and is also subsequently produced every time he remains in police custody.
The High Court does not empower the magistrates of the second class to pass an order for the detention of the accused in the custody of the police.
Duties of the officer-in-charge and the executive magistrate
Section 2A – If in any circumstances, the judicial magistrate is not present to take up the matter, then the official in charge of the case shall refer the case to the nearest executive magistrate on whom the powers of a judicial magistrate or metropolitan magistrate have been conferred. He shall be provided with a copy of the entry in the diary and the reasons for the detention, for which he may allow the detention for not more than seven days. At the expiry of the prescribed period, the accused shall be released on bail except if any order of further detention is being made against the accused by a magistrate who is authorised to pass such an extension to his period of detention.
Other provisions
Section 167(3) – The magistrate shall record the reasons given by the police as to why the accused is being detained and kept in the custody of the police.
Section 167(4) – If an order is made by any magistrate other than the Chief Judicial Magistrate, then he must be sent a copy of the order, with the reasons for making it.
Section 167(5) – In the matter of a summons case, if the investigation has not been concluded within six months from the date on which the accused was arrested, the magistrate shall order to stop any further investigation related to that case, unless the police officer carrying out the investigation presents relevant and special reasons for continuing the investigation beyond the period of six months in the interests of justice.
Section 167(6) – If the Magistrate declares an order to stop the further investigation, then an order can be passed against it after making an application to the Session Judge by providing relevant grounds of why it is necessary to carry out further investigation. Under sub-section (5) the judge has the authority to vacate the previous order.
In case of a woman under 18 years of age, the magistrate shall authorise her detention in the custody of a remand home or recognized social institution.
If a person is transferred from police to judicial custody, then the number of days the accused spent in police custody would be deducted from the total days of remand in judicial custody.
Various state amendments to Section 167 CrPC
Andaman and Nicobar and Lakshadweep Islands
For the Union Territories and the Andaman and Nicobar Islands and Lakshadweep Islands, some additions were made to sub-section (1) of Section 167, which provides that if a judicial magistrate is not present on such an island, then an Executive Magistrate functioning on the island can be referred.
After sub-section (1), it was mentioned in the form of (1-A), which stated that the copy of entries in the diary of the police official shall be interpreted as references for the Executive Magistrate.
In sub-section (3), a provision was made which said if an Executive Magistrate is not present, then only a Sub-divisional Magistrate or a District Magistrate is empowered by the State Government to pass an order of detention into the custody of the police.
In sub-section (4), a provision was made that if any order is passed by the Executive Magistrate then the Magistrate making the order shall send a copy of the order, stating the reasons for making it, to the Executive Magistrate to whom he or she is immediately subordinate.
Andhra Pradesh
In sub-section (2), clause (b), it was added that the judicial custody of the accused could be extended and he or she would have to appear in front of the judge either in person or through the medium of electronic video linkage.
In Explanation II, under clause (c ), “an accused person was produced” was substituted with “an accused person was produced in person or, as the case may be, through the medium of electronic linkage”.
Union Territory of Chandigarh
It said that in Section 167, words like ‘Executive Magistrate’ will be read as a substitute for the words ‘Judicial Magistrate’ or ‘Magistrate’ and the words ‘District Magistrate’ will be substituted for the words ‘Chief Judicial Magistrate’
Chhattisgarh
In sub-section (2), after clause (b), a new clause (bb) was added which stated that no magistrate can authorise the detention of an accused who is not produced in front of him by the custody police, either in person or through the medium of electronic video linkage, and should be represented by a pleader in court.
In Explanation II, the words “was produced” were added and changed to “was produced from the police custody”
After Explanation II, a new Explanation III was added which stated that if any question arises whether an accused person is produced by other than the custody of police, either in person or through the medium of electronic video linkage before the magistrate, the production of the accused person can be proved by his or his legal representative’s signature on the order of detention.
Delhi
Explanation II was substituted with “the production of the accused person can be proved by his signature on the order authorising his detention or by video recording of the proceedings, as the case maybe”.
West Bengal
It made changes to the sub-section (2) clause (b), where it was substituted with – “no magistrate shall authorise detention under this section in the custody of the police, unless the accused is produced before him in person every time the accused is in police custody” and “in judicial custody unless the accused is produced before him either in person or through the medium of electronic video linkage”.
In sub-section (6), the phrase “and the accused has been discharged” was added after the words “any order stopping further investigation into an offence has been made.”
Tripura
In Section 167, sub-section (2), the words ‘ninety days’ were substituted with ‘one hundred eighty days’ and the words ‘sixty days’ were substituted with ‘one hundred twenty days’.
Tamil Nadu
In sub-section (2), for clause (b), it is substituted that no magistrate shall pass the order of detention of an accused person under this section if the accused is in police custody and has not been physically produced before him. If the accused is detained other than in the custody of the police, then unless the accused is produced either in person or through media or electronic video linkage, the magistrate is not authorised to detain the accused.
Punjab
The word ‘fifteen days’ was substituted with ‘thirty days’ in sub-section (2) of Section 167.
Haryana
Section 167 A, was inserted which said “For the avoidance of any doubt, it is declared that the provisions of Section 167 shall apply to any person arrested by, under any order or direction of, a magistrate, whether executive or judicial.”
Concept of custody under Section 167 CrPC
Generally, the term ‘custody’ under Section 167 is understood as ‘police custody’ or ‘judicial custody’. In police custody, the officials have a greater extent of access to the accused as he is in the exclusive custody of the police officer. The prime focus of the police department is to conduct interrogations within the prescribed period of custody in order to extract the truth in any given case. Whereas in judicial custody, the accused is kept in jail, where the police officials or the investigating agencies cannot have the same hold on the accused to ask him or interrogate him in their own preferred way. Whenever the officials have to meet the accused for investigation, they have to get permission from the court and follow the guidelines and conditions laid down by the court.
Widening the ambit of custody under Section 167 CrPC
The Supreme Court has opened the gates of custody to a wider angle by introducing the terms ‘house arrest’ and ‘transit remand’ in the very high-profile case of Gautam Navlakha v. National Investigation Agency (2021). The Supreme Court has stated that house arrest can be ordered by the lower courts in appropriate cases instead of judicial or police custody. It signifies the expansion of the concept of custody under Section 167. It would pave the way for arguments to be made that an accused should be detained under house arrest rather than be subjected to traditional imprisonment in certain cases.
Background of the case
On 28-08-2018, a famous human rights activist, Gautam Navlakha was arrested from his Delhi residence as an FIR was filed in Pune. The FIR was registered against him on the charge of terrorist activity under the Unlawful Activities Prevention Act, 1967.
After the arrest, he was taken to the Chief Metropolitan Magistrate in Delhi to get a ‘transit remand’. The CMM directed that he should be presented before a Magistrate in Pune before 30-08-2018. Meanwhile, Navlakha had also filed a writ petition before the Delhi High Court, which heard the case on the same day and directed to cancel the order for transit remand and ordered that Navlakha should be placed under ‘house arrest’ at his Delhi residence.
This house arrest made him in contact with no one other than the ordinary residents of the house and his lawyers. He was not allowed to leave the house, and two guards were put at his residence to have him under house arrest. After 34 days of house arrest, the Delhi High Court put the house arrest to an end. After this Navlakha filed a writ petition before the Bombay High Court to put an end to the FIR registered in Pune and also requested to grant anticipatory bail. Both of the requests were rejected by the Bombay High Court, and afterward, the court ordered that Navlakha should surrender to the investigating authorities, which he did and spent 11 days with the National Investigation Agency in New Delhi. He was transferred to Mumbai and was kept in judicial custody for a period of 48 days.
Later on, Navlakha filed an application for default bail under Section 167 of the CrPC, where it was argued that the 34 days that he had spent under house arrest should be counted towards the period required for default bail, which resulted in a total of 93 days in his case, including the 11 days and 48 days of police and judicial custody respectively, but the lower courts rejected this application for default bail which made Navlakha to appeal again and this time to the Apex Court.
Supreme Court interpretation on transit remand
The Supreme Court analysed whether transit remand was a form of custody under Section 167 and whether it would be included in the time period required for default bail. The NIA stated that a transit remand was not a remand for detention under Section 167 but was merely an order to take the accused before a magistrate who had the jurisdiction to pass orders in that particular case.
The Court stated that an order for transit remand would fall under the ambit of Section 167 because the accused is put under police custody for a continuous period of time that is beyond the period of 24 hours. It said if we don’t consider transit remand under Section 167, then it would imply that the detention is beyond 24 hours, a violation of Section 57 of the CrPC.
The Supreme Court also mentioned the nature of transit remand and said that it is not a form of judicial custody because the accused is put under a form of custody that is composed of only police officials. It is the police officials who present him before the magistrate who has the jurisdiction to try the case. Therefore, it was decided to consider that the transit remand is police custody.
Supreme Court interpretation of house arrest
The Supreme Court considered house arrest as a form of custody under Section 167 of the CrPC. The Supreme Court talked about the current problem of overcrowding of prisons in India and stated this as its motivation behind this decision.
The legal reasoning given by the Court was that since house arrest deprives the accused of his freedom of movement and liberty, it could be considered custody under Section 167. The Court stated that if house arrest is ordered under Section 167 then those days would be included in the days of custody to calculate the total time period for granting the default bail.
The Court also analysed whether house arrest would be considered as police custody or judicial custody, but could not categorise it in either of the places. It believes in adopting a case-by-case approach. However, in this case, after taking into consideration the ingredients of house arrest and the limitation imposed on the police in accessing the accused, it stated it as judicial custody. Despite deciding the above, the Supreme Court held that Navlakha’s house arrest for a period of 34 days would not be considered as custody under Section 167 CrPC. The reasoning given in the judgment was unclear and contradictory. The court stated that the High Court has not ordered the house arrest ‘purporting’ to be under Section 167. The Supreme Court considered that in this scenario, the house arrest would not be treated as custody under Section 167, therefore the days of his house arrest shall not be counted as the days of custody for Navlakha’s application for default bail.
The judgment also tells us about the difference between the orders which appear to be passed (purportedly) under Section 167 and the orders which are not a key factor in determining whether a period of house arrest will be considered ‘custody’ under Section 167 so that the days could be counted as the time period spent in custody when an application for default bail is filed by the accused.
The judgment goes through various case laws and hypothetical examples to explain that even if a judgment is made in an illegal manner, without following the law and order, but if it is ‘purported’ to be passed under Section 167, resulting in the detention of the accused, then this period of time will be counted in days of custody, which would further help in getting a default bail from the court.
The Court has not clearly explained what distinguishes an order that ‘purports’ to be passed under Section 167 from one that does not. Therefore, this judgment is subject to many issues, lacks guidance, and also has many contradictions in the reasoning of the Supreme Court.
The decision when ‘purported’ to be passed under Section 167 implies either that –
The court will always have to clearly mention that they are ordering to detain an accused under Section 167 so that it can be counted in the days of custody.
Whenever a judgment is appealed in higher courts, they would need to examine the intention behind the orders of the lower courts first then they would confirm whether the judges “purported” the orders of detention to be under Section 167.
The Supreme Court has, however, shown contradictory behaviour by not counting the 34-day period of Navlakha’s detention in order to grant him his default bail, even though it itself talked about the fundamental right under Article 21 of the Constitution that no person shall be deprived of his life or personal liberty except by the procedure established by law. This clearly shows the contradictory nature of the decision. Here, the Supreme Court did mention that the period of house arrest could not be considered as custody under Section 167 but failed to explain how the High Court could legally pass an order of this detention if it was not ordered under Section 167. Navlakha’s merely stating that the lower court did not ‘purport’ to make an order under Section 167 appeared to be a weak argument for not considering a fundamental right and discounting a period of actual detention and deprivation of liberty in that house arrest.
In matters where house arrest is preferred over traditional jail custody, the judgment said that in appropriate cases, it would be in the court’s discretion to order house arrest under Section 167. However, the Supreme Court didn’t discuss the guidelines related to it in detail on when this discretion could be used. It mentioned some criteria like age, health conditions, the prior judgments passed for an offence of the accused, the nature of the crime, the need for other forms of custody, and whether it would be possible for the police officials to enforce house arrest, which would be relevant to order for house arrest of an accused.
This case was also unclear about who was entitled to enforce the house custody. Here it was the two guards of the Delhi police, but it didn’t say who would always be authorised to carry out this activity whether it would be the police or the jail authorities. So, that it could be clear on whether it was judicial custody or police custody.
House arrest has its own benefits in terms of the ease it can provide to the accused, like they would prevent undue disruption in their lives, as they will be able to continue their employment, but they will have to abide by the conditions mentioned by the court. This form of custody is likely to be seen in cases regarding to white collar crimes, which are non-violent in nature or in cases where the accused has committed an offence for the first time and has always had a good clean image in society. In such cases, house arrest should be practiced and encouraged.
Narada Scam judgement
Recently, the Calcutta High Court on 19-05-2021 also ordered the house arrest of four Trinamool Congress leaders, but it didn’t clearly mention that this order was made under Section 167 CrPC. It stated that it is judicial custody but they did not mention that they are passing this order under Section 167 CrPC, which created confusion. The judgment simply stated that judicial custody was being offered by referring to the judgments given by the Supreme Court in the Gautam Navlakha case and also because of the age and health concerns of the accused, as three of the four accused were admitted to the hospital. In this case, the accused were getting medical facilities.
Interpretations from different case laws:
In Manoj v. State of Madhya Pradesh (1999), the Court held that when a person held in detention who was neither an alien enemy nor was arrested under the preventive detention law, was not produced by the police officer to the nearest judicial magistrate within 24 hours of his arrest, then his further detention would not be considered legally valid and would be held to be vitiated. The Court further said that an excuse of not producing the accused before the magistrate on the grounds that he was already in jail in some other State in connection with another case will not be considered a valid reason.
In Directorate of Enforcement v. Deepak Mahajan (1994), this case dealt with whether a magistrate had jurisdiction over an accused who was arrested by the Enforcement Directorate under the Foreign Exchange Regulation Act, 1973, and was presented before him for judicial remand under section 167(2) CrPC. In this case, the Supreme Court overruled the decision of a five-judge Bench of the Delhi High Court and stated that the sub-sections (1) and (2) of Section 167 CrPC are squarely applicable with regard to the production and detention of a person arrested under Section 35 of the Foreign Exchange Regulation Act, 1973 and Section 104 of the Customs Act, 1962 and that the Magistrate has the jurisdiction to authorise the detention of a person arrested under these Acts.
In Central Bureau of Investigation Delhi v. Anupam J Kulkarni 8 May 1992, it was held that the period of 90 or 60 days shall be calculated from the date of detention as directed by the Magistrate and not from the date of arrest by the police. After the expiry of 15 days of detention, the accused shall be sent to judicial custody from the police custody.
Dr. Bipin Shanti Lal Panchal v. State of Gujarat (1996), was a case under the Narcotic Drugs and Psychotropic Substances Act, 1985, where the Supreme held that if the accused fails to exercise his right to be released on bail for the failure of the prosecution to file a charge-sheet within the time allowed by law, then he could not contend that he had an indefeasible right to exercise it at any time even after the filing of the charge-sheet. Had he exercised the right and got himself time, released before the filing of the charge sheet, he could not be rearrested after the charge sheet is submitted to the Magistrate.
In Abdul Wahid v. the State of Maharashtra (1991), the right accrued to the accused to get a default bail on failure to submit the charge sheet within the prescribed time is not an absolute right. It gives the only absolute right to be granted bail if the charge sheet is not submitted within the prescribed time, but in spite of the bail, the detention continues to be authorised. So, he can use this right under the provision of sub-section(2) only before the charge sheet is filed against him.
In T Jagdeeshwar and Anr. v. State of Andhra Pradesh (2002), the Court said that under Section 167, a remand order is a judicial order. In order to extend a remand order, the investing officer should mention the proper reasons and the consequences for extending the remand order. If the request is not made by the police or jail authorities, or in the absence of sufficient grounds, the remand should not be extended, and the magistrate must inform the accused that he can be released on bail.
Shri Joyant Borbora v. State of Assam (1992), was regarding the custody into which an accused would be put as the magistrate thinks fit. The Court mentioned that whenever army members come to the aid of civil authorities for the maintenance of law and order, then they have absolutely no right or power of investigation or interrogation. The accused could not be put into army custody on the prayer of the investigating officer. The court said it would be considered highly improper, illegal, and ultra vires of the constitution.
In Suresh Kumar Bhikamchand Jain v. State of Maharashtra and Anr. (2013), Section 167(2)(a)(ii) was revised and the Court held that default bail shall be granted to the accused irrespective of the fact that the court took it into cognizance. In this case, though the police report was submitted within the prescribed period, no cognizance was taken as there was no sanction to prosecute. The Magistrate went on granting remand till it was questioned by Special Leave Petitions after failing to get bail from the High Court under section 167(2). The Supreme Court clarified that once the police report is filed within the stipulated time, the question of the grant of default bail does not arise. Whether cognizance is taken or not, that is immaterial as far as section 167 is concerned.
InVipul Shah Prasad Agarwal v. State of Gujarat and Anr. (2012), an FIR was recorded, further investigation was conducted, and a charge sheet was submitted within the prescribed period of time. However, the investigation conducted was not accepted by the Supreme Court and the Court ordered a fresh investigation by the CBI. The CBI recorded a fresh FIR. The petitioner claimed bail on the ground of default in submitting the charge sheet due to the rejection of the first investigation. Then the Supreme Court held that merely because a fresh investigation has been ordered by the CBI, it does not mean that the charge sheet which was submitted earlier gets abandoned.
In Aslam Babalal Desai v. the State of Maharashtra, (1992) the Supreme Court said that once the accused is released on bail under section 167(2), he cannot be taken back into custody merely on the filing of a charge sheet which reveals the commission of a non-bailable crime unless there are strong reasons why bail cannot be cancelled on mere production of a charge sheet.
In Khatri and Others v. State of Bihar and Others (1980), the magistrate or the Sessions Judge before whom the accused appeared informed the judges that he could not afford legal aid due to his weak financial status, and was struggling with poverty, after which he was entitled to obtain free legal service at the cost of the state. The Supreme Court had given necessary guidelines to magistrates, session judges, and state governments regarding the same.
In Subrtapatra and Ors. v. Director of Panchayat and Ors. (1994), whenever there is more than one accused and if they are not arrested on the same day, then the computation of the stipulated time of investigation should be made from the date of arrest or surrender of the first accused.
Conclusion
Section 167 of the CrPC lays down the procedure of detaining a person if he is accused of committing any sort of crime and when the investigation is not completed within 24 hours by the police or the investigating agency. It also protects the accused from unlawful detention by not granting the extension of the detention if the court finds no substantial evidence regarding it. The maximum number of days an accused can be detained in police custody is 15 days, but it could be further extended in the form of judicial custody for a maximum of 90 days in case of an offence that is punishable with death, life imprisonment, or imprisonment for a term of not less than 10 years. This section also secures the right of the accused to get an indefeasible bail if no evidence or charge-sheet is put in front of the court by the police involved in its investigation. The provision of default bail secures the fundamental right of the accused for its protection of life and liberty, according to Article 21 of the Constitution.
The two different forms of custody also affect the interrogation process. While in one, the investigating agency has greater access to the accused, in another one it makes them follow rules and orders of the court before meeting the accused for investigation.
This section obeys Article 21 of the Constitution which states the protection of life, personal liberty, and rights of the accused person. It restrains the direct and prolonged access of the police that they have over the accused because arrest directly curtails personal liberty of an individual, it strikes at his freedom.
The Supreme Court has also mentioned about transit remand and house arrest and has thoroughly explained both the terms in Gautam Navlakha’s case. This case did broaden the meaning and scope of the term ‘custody’. It stated that the detention period of house arrest will only be counted in calculating the days of detention if it “purports” to be passed under Section 167 CrPC, which eventually quashed the appeal of default bail for Gautam Navlakha. The Supreme Court mentioned that the lower court did not order it under Section 167, therefore it would not be considered.
Frequently Asked Questions
Are officers other than police authorised to arrest an accused under Section 167(2) of the CrPC?
Yes, the Supreme Court has laid down the principle that for invoking section 167(1) of CrPC, it is not necessary that the arrest should have been made only by a police officer, and it is not necessary to have the records of entries in a case diary. The magistrate can take into judicial custody a person who is produced before him if –
The arresting officer is legally allowed or authorised to make the arrest.
The offence for which the person is arrested should be well-founded.
Therefore, there are many other officers other than police who are authorised to detain a person under this section, like officers of the Enforcement Directorate under the Foreign Exchange Management Act, Customs Act, or Narcotic Drugs and Psychotropic Substances Act. They are competent enough to seek judicial remand of an arrested person.
What is the purpose of Section 167 of the CrPC?
The purpose of section 167 is to protect the accused from dishonest or immoral police custody.
What is the difference between police custody and judicial custody?
Police Custody
Judicial Custody
The accused is kept under the police who is in charge of the investigation. The police has the physical custody of the accused.
The Magistrate has control over the custody.
It could be maximum for 15 days on the orders of a Magistrate.
It can be either for 60 or 90 days based on the severity of the offence committed.
The accused is kept in a prison located in the police station where the case was lodged.
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This article is written by Daisy Jain, a B.COM. L.L.B. student at the Institute of Law, Nirma University. This is an exhaustive article that deals with an overview of patents and what a patent is. This article also talks about the criteria for patentability and landmark case laws related to patents.
Suppose that you have a groundbreaking idea. You attempt to create the application. Now that your innovation is a reality, it functions. However, along with all the enthusiasm over this creation comes some worry that the concept will be stolen. One might apply for a patent for their innovations to get ownership of the invention and prevent it from being replicated. Let us walk you through real-life examples of patents. As many of us would have seen a movie called “Padman”, which is based on a real-life based story of a social entrepreneur from Coimbatore, Arunachalam Muruganatham. He got the patent rights to invent the low-cost sanitary pad-making machine. I hope now you understand a little bit about what a patent is, and to understand it in depth, let us go through the article.
A patent is one of the types of Intellectual Property Rights. Many people are unclear about the concept of intellectual property rights. The average person assumes that IPR is reserved for extremely serious inventors when they hear people discuss it. It is untrue. Anything you make with your mind belongs to you and is intellectual property. Such a creator’s ownership rights over their works are known as intellectual property rights. It is as simple as it looks difficult. To claim IPR, you do not need to invent something revolutionary. Intellectual property law allows even simple works of art created by children to be safeguarded. An intellectual property right is an intangible right. Like normal property, you have a right to your intellectual property. An exclusive monopoly is granted to the owner of the intellectual property right to profit from the creation. You can decide whether to sell it or keep it in reserve. The catch is that only you can decide whether to give consent to someone using your intellectual property.
Types of Intellectual Property Rights
Intellectual property law governs the use of Intellectual Property Rights (IPR). Industrial property rights and copyrights are the two categories into which intellectual property rights fall. Patents, trademarks, designs, integrated circuits, geographical indications, plant variety protection, trade secrets, traditional knowledge, and biodiversity are all examples of intellectual property rights. Authorship rights, artistic rights, film rights, transmission rights, performer rights, etc. are all included in copyrights. Trade secret protection (like data exclusivity) is non-existent in India.
Tenure of Intellectual Property Rights
While other properties’ patent terms range from 10-15 years and are extendable for some chosen properties, industrial property rights patent terms last for 20 years from the date of the initial filing. The protection period for copyrights, particularly author’s rights, is the author’s lifespan plus 60 years. The length is 60 years in several different situations, particularly copyright in government works, works of public enterprises, works of international organizations, etc.
Objective and role of international and national governing bodies
The World Trade Organization (WTO) replaced the General Agreement on Tariffs and Trade (GATT) and added protection for individual rights like intellectual property rights. The fundamental goal was to create an international trading system that was predictable and stable while keeping an eye on and resolving international conflicts. With the founding of the WTO, trade-related aspects of Intellectual Property Rights (TRIPS) came into effect. India has been a signatory since 1995, updating the infrastructure of the Patents Act, 1970, within the allotted transition period. The World Intellectual Property Organization (WIPO) is a global organization that fosters cooperation between nations in the development, use, and preservation of works of the human mind for the economic, social, and cultural advancement of all people.
Conventions and treaties dealing with Intellectual Property Rights
The Paris Convention (PC), 1883, and the Patent Cooperation Treaty (PCT), 1970, play a significant role concerning patents among the several conventions and treaties dealing with intellectual property rights. The Paris Agreement includes a clause that allows countries that are party to the Convention to take precedence over the invention. In other words, the Convention has tried to bring national treatment as both India and the foreign national’s country are parties to the Paris Treaty. The Convention has brought about national treatment, where a foreign person is treated as an Indian national.
For the Patent Cooperation Treaty (PCT) members, a single patent filing process has been introduced under the Patent Cooperation Treaty. The Treaty is advantageous since it eliminates translations and repetition of patent office processes through single filing and examination procedures. Additionally, the provision saves time while saving money during filings.
What is a patent
Before getting into detail about what a patent is, let’s discuss something else first. You have a talent for construction and a desire to amass wealth. Unfortunately, that idea was never realized since someone else stole your idea because you were unaware of a (not so) minor thing called patents. By registering your idea for a patent, all of this can be prevented.
A patent is a legal document that the government issues to the creator, giving him the exclusive right to sell, manufacture, use, and import the invention for a predetermined amount of time following the publication of the idea. By limiting who can sell their products on their behalf, patents are required by law to safeguard innovators. The sources of the phrase “patent” are old French, old Latin, and old English. From the Latin “patentem” and French “patente”, which both indicate the open letter, it first appeared in the late 13th century. In the 1580s, the phrase took on its current meaning when it was explained as a government-issued permit to create and sell a specific good.
A patent is used in business to develop, promote, and sell a product. For many of the products that people purchase, patents are employed. Once a patent application has been accepted by the government, it generally lasts for 20 years from the application date. An official government letter patent is the document that gives a person or business the sole right to sell a product. The patent applicant or seller may start collecting royalties for their goods once the patent has been processed and authorized. A royalty is a payment made to the creator of a product in exchange for the right to use it; it serves as reimbursement for their labor. This might take the form of a television commercial producer paying a songwriter royalties for the usage of their music in a commercial. At least until the product is released to the market, patents and royalties are typically maintained confidentially by firms through solid agreements and trade secrets. Regardless of whether a patent application is filed with a provisional or complete specification, all Indian patents have a 20-year term beginning on the date of filing. The 20-year period, however, starts on the date of the international filing for applications submitted under the Patent Cooperation Treaty (PCT).
Types of patents
To protect various types of inventions, various forms of patents are available. Competent innovators can use the various patent application types to obtain the legal protection they require for their discoveries:
Utility patent
When most people hear the word “patent,” they generally think of inventions covered by utility patents. A utility patent is a technical document that describes in great detail how a new device, method, or system operates and provides a strong form of protection. A wide variety of inventions, including the broom, computers, business procedures, and medications, have been protected under this patent. The utility patent duration is 20 years.
Design patent
This patent protects adornment on a practical object. A design patent, for instance, can safeguard the appearance of a shoe or a bottle. The majority of the actual paper is made up of images or sketches that depict the useful item’s design. Because a design patent uses so few words, they are notoriously challenging to search for. Software businesses have recently exploited design patents to safeguard user interface components, even the design of touchscreen devices. The design of the invention must be both practical and unique. The original Coca-Cola bottle design is an illustration of this kind of patent. The design patent duration is 15 years.
Plant patent
A plant patent covers novel varieties of plants developed through cuttings or other non-sexual methods, as the name implies. Genetically modified species are typically excluded from the scope of plant patents, which instead emphasize traditional gardening. The plant patent duration is 20 years.
Types of patent applications
There are four types of patent applications:
Provisional patent application
When you are not quite finished with your idea and want to draw time to continue working on the research and creation of your innovation while at the same time not wanting to lose out on the priority date, you file a provisional application. It’s possible for a tentative specification to have claims or not. You have 12 months from the date of filing a provisional application to submit a full patent application. Your application will be canceled if you don’t submit a full patent application within 12 months following the filing of your provisional patent application.
Divisional patent application
If a claimant’s application includes claims to more than one invention, the claimant may split the application and submit two or more applications, one for each invention, on his own or in response to an official objection. A divisional application is a kind of application that is split from its parent application. All divisional applications shall have the same stated priority date as the parent application. A divisional application’s patent period is 20 years from the time the main application was filed.
Additional patent application
An application for a Patent of Addition may be made by the applicant when he develops an enhancement or modification of the invention specified or revealed in the main application for which he has already made an application or secured a patent. Only after the main or parent patent has been obtained may an additional patent be issued. Throughout the duration of the primary patent, there is no need to pay a separate renewal fee for the Patent of Addition. A patent of addition must be issued for the same duration as the patent for the primary invention and terminates with it. The date of filing is the day that the patent application for the addition was submitted.
Complete patent application
A complete application is one that is submitted along with a complete specification that fully and specifically describes the invention, including the best way to implement it. It may be submitted immediately or within a year of the provisional patent application’s submission.
Difference between patents, trademarks andcopyrights
Parameters
Patent
Trademark
Copyright
What is safeguarded?
Inventions include modifications to existing processes, tools, manufactured goods, and material compositions.
Any word, expression, sign, and/or artwork that specifies and sets one party’s goods apart from another’s in terms of their source.
Books, essays, music, photography, sculptures, dances, sound recordings, movies, and other original works of authorship.
Conditions to be safeguarded
An invention must be novel, practical, and original.
A mark needs to be unique (i.e., it must be able to ascertain the origin of a certain good).
An original, innovative, and tangible piece of work is required.
Duration of protection
20 years
Whenever the mark is utilized in commerce.
The author’s lifespan is +70 more years.
Rights conferred
Right to stop others from manufacturing, distributing, or bringing in the patented innovation
Right to use the mark and to stop others from using it or marks that are identical in a way that could lead to chaos about the source of the products or services.
Right to control over the copyrighted works’ dissemination, presentation in public, and exhibition, as well as their reproduction and creation of creative works.
Criteria for patentability
Only if an innovation complies with the criteria for patentability will it be eligible for a patent grant in India. The innovation must meet all of the conditions that evaluate its suitability for a patent grant from various angles to be considered patentable. Compared to other standards, some of them are easier to meet, but all of them are equally crucial for determining patentability. The following are the three requisites for patentability criteria:
Novelty
Only if a product or method is both innovative and inventive, will it be regarded as an invention under the Patents Act. Simply said, novelty refers to anything being new compared to what it was on the priority date of the patent application. If an innovation departs from the “prior art,” which is what already exists, it will be seen as unique. Previous art references are never pooled for novelty analysis; rather, novelty is always evaluated in light of a particular prior art reference at a time. However, a prior art citation may be interpreted to include general knowledge of the art that isn’t stated explicitly in the reference. Novelty is included in many sections relating to inspection, anticipation, objection, and revocation but is not defined by the Patents Act.
Inventive step
Of all the criteria for patentability, the inventive step criterion is the most ambiguous and difficult to define. The Indian Patents Act offers non-obviousness and technical advancement or economic relevance as two criteria for evaluating inventive steps. The Patents Act defines inventive steps in Section 2(ja). The inventor must make a creative contribution to the invention. It needs to be something that a skilled craftsperson wouldn’t anticipate. Let’s say an innovator creates a device to address a technological issue. A different expert in the same sector offers the same solution by drawing on his knowledge or absorbing instruction. The inventor’s technological solution won’t be regarded as original in that situation because it was just a suggestion or motive. The Supreme Court defined the term “inventive step” in the Biswanath Prasad Radhey Shyam case in 1978, and it is being used for inventive step analysis today.
Industrial application
According to Section 2(ac) of the Patents Act, “the creation is a patent of being used or created in a sector.” It implies that a product must be useful to be patentable because the invention cannot exist in a vacuum and must apply to all fields. A product will be deemed to be industrially applicable if it can be produced consistently and has at least one application in a given industry. For a procedure to meet this condition, the industry must be able to employ it. Users that are uncertain, hazy, future, or non-specific are not regarded as legitimate users. The same is true when a product or procedure is used in a minimal or untrustworthy way.
The Delhi High Court noted that an invention must be economically feasible in a case involving Cipla and Roche after reviewing various Indian and international cases about the utility or industrial application criteria. Commercial use is required, although commercial development need not be demonstrated. Fundamentally, the invention must serve the function stated in a patent specification and have a practical application. Nothing more will be necessary to demonstrate an invention’s utility for patentability.
What cannot be patented
A novel product or technique must have an innovative step in order to be patentable in India. It may also be manufactured or used in the industry. The invention must also satisfy certain criteria relating to novelty, innovative step, and industrial applicability in order to be patentable. Please go through the criteria of patentability as discussed earlier in this article before moving on to “What cannot be Patented in India?”
Sections 3 and 4 of the Indian Patent Act, 1970 deal with those discoveries or methods that do not fall under the ambit of the Act and therefore are not patentable. The reasons why these are not patentable are that sometimes the inventions or discoveries are against the public policy, the particular invention or discovery has already existed in nature, meaning thereby, that any discovery of living or non-living thing is already existing in nature and is known, and invention or discoveries are against the natural laws. The following are some of the examples of inventions that cannot be patented:
A patent cannot be issued for a device that is used for gambling machines, bank lockers, or housebreaking. A patent cannot also be granted to software that can help someone get into someone’s email by hacking it. These inventions are frivolous in nature and go against natural laws.
Any invention of medical treatment or a method related to medical treatment cannot be patented. The reason is that the doctors or surgeons will not be able to perform surgeries because they will be worried about patent infringement at that point in time.
Any discovery or invention cannot be patented if it is against the established natural laws or principles. For example, if someone makes a clock that has 10 hours, which is divided into 100 minutes and 100 seconds each. It shall go against natural laws or universal law.
This does not apply to all innovations or discoveries, such as Isaac Newton’s law of gravity or Albert Einstein’s relativity formula. Simply put, a scientific theory or a rule of nature cannot be patented.
Content of a patent
The title, bibliography, description, previous art, synopsis, high-quality description of the invention, statistics, figures, and claims that include both independent and dependent claims, are all included in a patent document. Understanding that researchers, including scientists and academicians, are accustomed to writing research articles for journals and the people knowledgeable in research activity create their own complete/provisional specifications.
Procedure for getting a patent in India
When the application for a patent is filed for the grant of a patent, an examination of the application has to be conducted in the Patent Office within 48 months from the date which the applicant specifies or from the date the applicant has filed for the grant of a patent. The applicant has a chance to address any concerns raised in the first examination report once it is released. The applicant must comply with the conditions within 6 months of the initial examination report’s release; however, the applicant may seek an additional 3 months. If the first examination report’s conditions are not met within the allotted nine months, the application is deemed to have been withdrawn by the applicant. After all objections have been resolved and all conditions have been met, the patent is awarded and published in the Patent Office Journal.
Infringement of patents and its types
The illegal use, production, sale, or offer to sell of the subject matter or a proprietary invention by another is known as patent infringement. Utility patents, design patents, and plant patents come in a variety of strong forms. The core tenet of patent infringement is that inventions cannot be used by unauthorized parties without the owner’s permission. Either directly or indirectly, patents are violated:
Direct patent infringement
Direct infringement is the most frequent type of patent infringement when the infringing invention is actually disclosed or serves essentially the same purpose. In order to directly infringe a patent, a person needs to create, use, offer to sell, or sell a patented invention without authorization. If a product or service fits all of the criteria for a claim in the infringed patent, it qualifies as an act of infringement even if it is not an exact replica of a good or service provided by the patent holder. Generally, direct patent infringement happens when a device that is commercially advertised, sold, or utilized without the owner’s consent is materially similar to a patented device or innovation.
Indirect patent infringement
It is further divided into two categories:
Inducement infringement
An act by a third party that directly induces another person to violate the law is known as an inducement infringement. This could involve leasing an innovation that is protected by another person’s patent or selling parts that can only be used practically with a patented device. Other examples include selling an invention with directions to use it in a certain way that violates a method patent. The inducer needs only help with deliberate infringement—intentional infringement of the patent is not necessary.
Contributory infringement
The selling of materials created specifically for use in a patented invention but with no other commercial purpose is known as “contributing infringement.” While there is a substantial overlap with indicators, contributing infractions call for a considerable amount of time. Seller obligations must be broken to directly infringe. A direct breach must also be indirect conduct for there to be a responsibility for it.
Compulsory licensing
One of the most significant provisions of the Indian Patents Act, 1970, provided that certain requirements are met, is compulsory licensing. Any interested person may, under the following criteria, apply to the Patent Controller for the issuing of a compulsory patent license at any time following the passing of three years from the date of the sealing of a patent. A voluntary license is granted by a person to use any good. Possessing a voluntary license is the first step. There are three justifications for requesting the mandatory license. After three years from the day the patent was granted, the license may be requested at any time. Anyone may request a compulsory license. Whether it be a real person, a fake person, or a business.
Grounds for granting compulsory licensing
There must be a justifiable demand.
The item must not legitimately be in the public domain.
The patented invention is not being used on Indian soil.
If one nation produces the COVID 19 vaccine, the other nations will receive the identical vaccine. The WHO and TRIPS have public health on their agenda. The government has issued a regulation stating that the vaccine production procedure must be granted as a country’s mandatory license for other countries. PPP is a relative concern in this situation and represents the triangle of public health, patent, and pandemic. The controller’s authority concerning the mandatory license is discussed in Section 88. The controller must look at the nature of the invention and determine whether it has the ability to file an application.
Landmark case laws surrounding patents
Novatris Ag v. Union of India (2013)
This is one of the most significant cases that deals with Section 3(d). In this case, the Supreme Court denied Novartis’ request for a patent on its anti-cancer medication Glivec. Novartis is a Swiss pharmaceutical corporation. Chronic Myeloid Leukemia is treated with Glivec. The patent office had rejected Novartis’ claim on the grounds that it was in conflict with Section 3(d) of the Indian Patents Act and that the medication did not demonstrate any known therapeutic efficiency over its prior form. The firm disputed this, and the matter was ultimately debated before the supreme court. The Court was required to think about the following:
Is the invention covered by Section 3(d)?
What does Section 3(d) mean?
Glivec was not a completely new material, according to the Supreme Court, but rather a new version of the drug. As a result, it did not pass the Section 3 test (d). The section lists increased effectiveness as a precondition, but this need was not met. Novartis made an effort to counter this, but in vain. According to the court, a drug’s efficacy in the context of pharmaceuticals refers to therapeutic efficacy; just because certain patients benefited from it does not imply that it met this requirement. The Court further stated that in order to preserve the lives of the general public, stricter conditions must be implemented when issuing patents for life-saving medications. The final outcome must be avoided at all costs.
Cipla Ltd. v. F.Hoffmann-La Roche Ltd. and Anr. (2015)
Hoffman, which is a multinational healthcare Swiss company, initiated a lawsuit against Cipla Ltd, which is India based pharmaceutical company. The issue arose in the Delhi High Court regarding the Roche medicine “Erlotinib,” which Roche marketed as TARCEVA. Erlotinib Hydrochloride is the substance that serves as the foundation for both Roche and Cipla. After claiming to have received a patent for “Erlotinib,” Roche began marketing the medication as TARCEVA in February 2007. It was revealed in January 2008 that Cipla intended to introduce a generic form of “Erlotinib.” This prompted Roche to file an infringement claim against Cipla. In the end, Roche was awarded a favorable verdict. The judgment clearly outlined the rules that apply to several important components of a patent infringement. Cipla was ordered to account for the production and sale of Erlocip, and Roche was awarded costs in the amount of Rs. 5, 00,000.
Diamond v. Chakrabarty (1980)
The focus of this case is microbes, particularly genetically modified microorganisms. A process patent was requested. The method, end result, and constituent parts were all claimed as patentable. It was questioned if bacteria could be patented because they are living organisms. Only microorganisms found in living things are patentable. The Supreme Court also opined that anything manufactured by man, including human-made creatures, is a subject matter for patentability.
Dhanpath Seth and Ors. Nil Kamal Plastic Crates Ltd. (2007)
As bamboo can be used for manual cultivation and is lightweight, Dhanpath created a Kilta-like gadget. Neel Kamal Plastic then began utilizing it without paying royalties to Dhanpath, preserving the ancient expertise. Dhanpath claimed that they first began using the basket because the traditional Kilta was so unpleasant and burdensome to use. Does Dhanpath Seth have a patent that is legitimate? The injunction was the case’s first issue, followed by the infringement. The Court ruled that bamboo baskets do not satisfy the novelty requirement and the section requiring customary knowledge. It was merely a copy of Kilta, the usefulness was not demonstrated, there was no originality, and the property was reiterated.
Conclusion
The Indian Patent Office has taken the required steps over the past two years to facilitate unfettered access to information about application status and granted patents. It is requisite All patented inventions must meet the requirements for patentability. When it comes to the investment made in the development of new technology, patents can offer both individuals and businesses significant value and higher profits.
Frequently Asked Questions
What is the Indian Patent Act, 1970?
The key characteristics of an invention, as defined by the Patents Act of 1970, are novelty, utility, and method of manufacture. According to the Act, “capable of industrial application” refers to an invention’s ability to be produced or utilized in a certain industry.
What is the duration of patents in India?
Every awarded patent has a 20-year term starting on the application filing date. The term of the patent, however, will be 20 years from the international filing date recognized under the Patent Cooperation Treaty (PCT) for applications submitted under the national phase of the PCT.
Which Act governs the patent system in India?
The Patents Act, 1970, as revised by the Patents (Amendment) Act, 2005, and the Patents Rules, 2003, control the Indian patent system. The most recent change to the Patent Rules was made in 2016, in accordance with how the environment is developing.
What can be patented?
A novel product or procedure that involves creative steps and can be used in industry qualifies as an invention and is eligible for patent protection. It must not, however, fall under the classifications of inventions excluded from patentability by Sections 3 and 4 of the Act.
Who can apply for a patent?
The real and first inventor or his assignee may file a patent application either individually or jointly with any other person. Legal representatives of any deceased individual may still submit a patent application.
How can I apply for a patent?
Both a provisional specification and a complete specification, along with the fee specified in I schedule, may be submitted with a patent application to the Indian Patent Office. If a provisional specification is included with the application, the complete specification must be submitted within 12 months after the provisional application’s filing date. After the aforementioned timeframe has passed, there is no further increase in time for filing a comprehensive specification.
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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This article is written by Satyaki Deb, a LL.M. (IP) candidate from the Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur. This article provides an exhaustive overview of how one can check trademark status online by following some simple steps and its related concepts that will help you along such a process.
In the fast-evolving world of intellectual property rights, a trademark or brand name (in layman’s language) is something that can build a business to new heights if utilised properly. On the contrary, if a trademark is not properly registered or protected or you do not know how to check the status of your trademark online with some simple steps, it may lead to loads of legal hassles in the future at the cost of your business. At the outset, it is pertinent to mention that before a trademark application is filed, one is generally advised to do a thorough trademark search first to see legally if it is worth going ahead with filing your trademark application. If you are advised to proceed with the trademark application with or without modifications, you or your agent/attorney will file your trademark application. Thus, instead of jumping headfirst into how to check the status of a trademark online, for the sake of convenience of the readers, as far as practicable, attempts will be made to demonstrate briefly how to do a trademark search, how a trademark application can be filed in India and then how to check its status online in a step by step guide.
What is a trademark search
Even though a comprehensive picture of what a trademark is, its types, etc. is beyond the scope of this article, briefly speaking, a trademark as defined under Section 2(1)(viii)(zb) under The Trade Marks Act, 1999, is basically a mark to distinguish between the goods and/or services of two persons, where a mark can range from “a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof” vide Section 2(1)(i)(V)(m) of the Trade Marks Act, 1999. Logically, it can be easily inferred from this that it is always best to have a unique trademark. The more similar your trademark gets to people offering similar goods and/or services, the more legal problems are likely to crop up from time to time. Herein, comes the importance of doing a thorough trademark search before finally deciding on your trademark.
Now, you have a business and you want to have a trademark of your own. You should do a trademark search first, and let us study how to do that with a brief example. For example : I am offering legal services in IP as an IP attorney, and I want to trademark the name of my IP legal business after my own name as ‘Satyaki Legal’. The steps to be followed are enumerated briefly as follows:
Step 1: Go to ipindia website > click on Trade Marks > Click on Public Search. Your screen is going to look something like the below picture.
Step 2: Now if your desired trademark is a text-only trademark, click on ‘Wordmark’ from the ‘Search Type’ bar as indicated above. If you want to check based on ‘Phonetic’ elements of your desired trademark, i.e. its pronunciations, or if you want to search as per the Vienna Code, click on the respective options. Since the most popular or first choice of search is usually a wordmark, we will go ahead with ‘Wordmark’ in this example.
Step 3: As you can see in the below picture, I chose to search with my name to see if I can trademark any legal services in my name. Legal Services fall under Class 45 (Nice Class) and if you are not aware of the class details of your goods and/or services, you can easily find it from the Class Details tab as seen in the top left of the picture. Click on ‘Search’ thereafter.
Step 4: The picture below will show what my search report looked like. Click on ‘Show Details’ to see more on the individual search results. But kindly keep in mind that the below picture is just one search result from the Indian Trade Mark Registry. A thorough trade mark search report from an IP attorney will have more comprehensive coverage with suggestions for modifications if necessary.
How to file a trademark application in India
Now that we have seen briefly how to do a trademark search, we will see how to file a trademark application in India in a few short steps. Since this step is recommended to be done by the agents and/or lawyers and this in itself warrants a comprehensive discussion, for the sake of brevity and sticking to the main title of this article, the steps will be shown in a generic way. The steps are as follows:
Step 1: From the ipindia website’s trademark page, go to ‘Comprehensive e-filing Services’ under the ‘Related’ tab. If you are an existing user, login using your credentials, or if you are a new user, register here. If necessary, use the user manual for guidance during new registration. The login page will be somewhat as below:
Step 2: Click on this link here to access the pdf which will show you clear instructions on the next steps on how you can file your trademark application after logging in to the above-mentioned portal.
Importance of checking trademark status online
Now that we have briefly seen the first two steps that are generally done before checking the status of a trademark application online, it is time to understand its significance of it. In other words, one should know why checking trademark status should not be missed. They are stated as follows:
Timely action with regards to the applications or registrations related to submitted documents can only be ensured with periodic checking of trademark status online. Missing out on deadlines with respect to actions to be taken may cost one a lot of time, money and legal hassles.
It is advisable to check the status of one’s application at least every six months from the date of application till issuance of registration, during the pendency of the application and after the grant of registration, every six months to check for any requirements of submission of post-registration documents, pending fees, or any requirements of maintenance filings, etc. Maintenance filings are usually necessary in the 5th or 6th year after registration, and one’s trademark stands to be cancelled if a maintenance affidavit is not duly filed.
If one fails to keep a tab periodically on the status of the trademark, there is a possibility of misuse by unscrupulous entities. Only by routine checking of status and thorough searches can unauthorised uses be challenged in a timely fashion.
Thus, as demonstrated above, periodic checking of trademark status is extremely important to ensure due compliance with all rules and regulations in a timely manner. Any slack in this aspect may cost your business heavily.
How to check trademark status online in India
Now that we have briefly seen the significance of checking the status of a trademark online, it is time to see the steps by which you will be able to do it. They are mentioned as follows:
Step 1: The first step to check the status of a trademark online is to visit IP India’s trademark status webpage, which is the official Government of India’s website in this regard. This option is available under the ‘Related Links’ tab of the Trade Marks tab in the IP India website. The trademark status webpage looks somewhat like the below picture. Click on the circled tab stating ‘Trade Mark Application / Registered Mark’.
Step 2: After clicking on the ‘Trade Mark Application/Registered Mark’, the webpage will look somewhat like the below picture.
Step 3: Click on the circular checkbox of the National/IRDI Number (as shown in the above picture) as your next step in this regard.
Step 4: As soon as you click on the National/IRDI Number, your webpage will look something as below:
Step 5: As you can see in the above image, there are two blank spaces to be filled. Fill up the trademark or application number and verify the captcha given. Thereafter, click on ‘View’.
Step 6: The picture below is an example of how your screen will look after you have successfully entered your trademark or application number and verified the given captcha.
Thus, these are the simple steps in which one can check trademark status online. But as you can see in the above picture, the status of the trademark is ‘objected’. What does this mean legally? What other statuses may be there after you check the status of your trademark? They have been discussed under the next heading.
Various results from the checking of trademark status online
Now, you have seen how to check the trademark status online in a step-by-step guide. As a corollary step, it is highly advisable that you understand the legal significance of the terms that your trademark status check may show. These terms are discussed briefly as below:
New Application
This is the first step in the process of a trademark application. So, what this step means is that your application is now within the Trade Mark Registry’s database and will be processed soon.
Send to Vienna Codification
In cases where the trademark is non-text in nature, that is, when the trademark consists of some artwork, logo, label, etc., then such trademark applications will be sorted and codified as per the Vienna Classification.
Formalities check pass
You can be really happy when you see this because this means that your trademark application has fulfilled all the necessary formalities required in this regard. Here, procedural formalities that when fulfilled give you this ‘formalities check pass’ status. Usually, these ‘formalities’ constitute the power of attorney, translations into English or Hindi where the original document is not in English or Hindi, etc. In other words, this status is a testament to your complete compliance with all procedural formalities.
Formalities check fail
You do need to worry by looking at the word ‘fail’. This status simply means you have missed out on some procedural requirements or your compliances are not satisfactory enough. In this case, you just need to file an amendment form to correct your mistakes and fully comply with all the procedural requirements of the Trade Mark Registry.
Send back to EDP
EDP is the acronym for ‘Electronic Data Processing’. Since all trademark applications are filed digitally these days, all the related documents and data entry need to be digitised too. So, what this means is that some errors have occurred at the end of the Trade Mark Registry during the data entry process and they require correction. There is no need for you to take any action regarding this status.
Send to PRAS
PRAS stands for ‘Pre Registration Amendment Section’. So, this status basically deals with any amendment form that you have filed before your trademark registration.
Marked for exam
This means that the legal process is starting and your trademark application is about to be thoroughly examined by an examiner at the Trade Mark Registry. The examiner will decide the registrability of your trademark application based on the provisions of the Trade Marks Act, 1999.
Exam report issued
As the name suggests, this means that the examiner has finished examining your trademark application and has issued an examination report in this regard. The exam report may show acceptance of your application or may contain objections for refusal of a trademark based on Section 9 and Section 11 of the Trade Marks Act, 1999.
Objected
This status means that the Trade Mark Registry has found some grounds to refuse the registration of your trademark. You will have to reply to the raised objections within one month from the date of receipt of a hard copy of the notice of such objection from the registry.
Abandoned
This status means that you have failed to reply to the Trade Mark Registrar within the stipulated time frame of the notice served on you. So, your trademark application has been marked as ‘abandoned’ owing to your failure to comply with the notice against you in a timely manner.
Accepted
This means that your trademark application has been accepted and is about to be published in the trademark journal before registration.
Advertised before accepted
This status means that your trademark application is yet to be accepted for registration and has been published in the trademark journal for the purpose of inviting objections from third parties.
Accepted and advertised
This status means that your trademark application has been accepted by the Trade Mark Registry as it is and has been published in the trademark journal. There are no further steps to be taken by you except periodic checking of its status.
Ready for show cause hearing
This status means that the examiner of your trademark application is not satisfied with the response you have filed against the objection notice served against you. You need to timely appear before the examiner and explain why your trademark application warrants no rejection. Failure to comply with this status in a timely and precise manner may lead to ‘abandoned’ or ‘rejected’ status of your trademark application. So, due care and caution need to be exercised with respect to this status.
Refused
This means that your response to the objections of the Trade Mark Registry or third parties is not satisfactory in the eyes of the examiner of your trademark application. So, he has refused to register your trademark.
Opposed
This means that a third party has filed an opposition against your trademark application. Any third party can oppose your trademark application by paying the requisite fees and filling out the due form (Form TM-O) within four months of the advertisement of your trademark application in the trademark journal.
Registered
This status means that your trademark is now successfully registered with the Indian Trade Mark Registry.
Removed
This means that your trademark has been removed from the Trade Mark Registry database. Usually, this happens when you fail to renew your trademark in a timely manner.
Withdrawn
This status means that you have voluntarily withdrawn your trademark application.
Conclusion
Trade mark litigation constitutes the bulk of intellectual property litigation in India. One of the major reasons that businesses face legal hassles with respect to trademarks is their failure to check trademark status online in a periodic manner. There is a common misconception among businessmen that once a trademark is registered, nothing needs to be done for 10 years. This false notion may cost a business heavily and one of the prime remedies in this regard is to keep checking the trademark status online in a periodic manner in the above-mentioned ways and take prompt due actions as per the status.
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This article is written by Shraddha Jain, a law student at the Institute of Law, Nirma University, Ahmedabad. This article seeks to differentiate between the concept of brand and trademark.
It has been published by Rachit Garg.
Table of Contents
Introduction
In today’s world, it is more convenient and trustworthy to purchase a branded product from the market. This brand name assures us of the product’s authenticity and high quality. However, in today’s environment, everyone aspires to be famous in a short period of time. Therefore, duplication or copying of brand names is very common. To avoid this, a new concept called a trademark has been developed. To understand them, certain fundamental distinctions between brand and trademark must be looked into.
A brand is a name assigned by the owner or producer of the good, whereas a trademark is a term, phrase, or symbol that is legally protected by statute. The concept of ‘brand’ is used to identify items and companies in the market, but it does not guarantee legal protection against illegal use. Therefore, the concept of a trademark has emerged to prevent the copying of products and other illegal uses.
Differences between brand and trademark
Meaning
Brand
A brand is a name given to a product by its owner or manufacturer. It is a name that refers to a company’s products and services and inspires favourable images and feelings in the customer. A brand name contains some elements like personality, culture, identification, picture, attitude, reputation, and spirit of the company. It is usually used to distinguish the company’s products from other products.
Brand names are often assigned to items developed by a corporation or group. This name has significant relevance that is difficult to comprehend. The style and design of the brand name are also based on this factor. Therefore, while selecting a brand name, one must be very careful to analyse the company’s core product.
This task of creating a brand name should be completed before you introduce your goods or establish your brand in the market. Furthermore, the inter-brand may be used under the brand names to convey the great advantages and quality of the goods and services.
Although a brand name does not guarantee legal protection against unauthorised usage, it can create a perception that only the brand can supply. With the passage of time, the popularity of the brand name may become a part of the language and the brand name may become a common word after several years of use.
“It is a term, name, sign, etc., specifically one officially registered as a trademark, which is used by a producer or trader to distinguish its items from others of the same sort and is prominently displayed on its products, in marketing, etc.”
“A brand name or trade name, whether registered or unregistered, is a name or a mark, such as a symbol, logo, tag, signature, or created word or writing, which is used with regard to any specific commodities for the purpose of denoting, or indicating, a correlation in the course of a business between such specified goods as well as some individual using such name or sign with or without any indication of that particular personality.“
Trademark
A trademark is any term, name, sign, image, or any mixture of these, used in business to identify and differentiate one company’s goods from those produced by another, as well as to signify the origin of the products. The symbol ® is used to denote a registered trademark. The trademark superscript, TM, is commonly used for an unregistered trademark to secure a word, expression, or symbol from other users. The usage of the TM sign, however, doesn’t guarantee that it is covered under trademark law.
“A ‘trademark’ refers to a sign suitable for being represented graphically and suitable for separating one company’s goods or services from those offered by others, and may include the design of the items, their packing, and colour scheme.”
the phrases ‘trade name’ and ‘commercial name’ refer to any name used by an individual to identify his or her company or occupation.
The term ‘trademark’ refers to any word, term, sign, design, or any combination thereof, that is-
used by an individual;
that a person intends to use in business and applies to the principal register formed by this chapter to differentiate his or her products, especially unique products, from those created or marketed by others and to identify the origin of the products, even if the origin is uncertain.
Origin of the concept
Brand
The term ‘brand’ or ‘brandr’ derives from early Norwegian, which means “to burn, to set a light“. It goes back to the days when shepherds marked their sheep to distinguish them from that of other shepherds. This was done by pressing a hot iron against the sheep to burn a distinctive mark into them. Subsequently, it was used in the English language as a loan translation. Initially, the phrase was used to refer to the source, originator, or owner of a thing or item.
Trademark
In later times, the figures were used as personal objects and frequently underwent changes in the hands of various family members. Then they were used as trademarks or as symbols of artisans and artists.
Purpose
Brand
A brand name serves two main purposes:
Identification: To distinguish one product or service from another of the same or similar type.
Verification: Confirming that a product or service is the real or intended item (as opposed to a generic or fake product).
The brand name reveals the brand’s purpose. It assists advertisers in developing a strong brand identity or picture for the item in order to place the item in the minds of the target audience. Before releasing or placing a commodity in a market or industry, it is critical to establish a brand name. Under the brand name, we can also utilise inter-brand to represent the important features or advantages of the product or service.
Trademark
The purpose of a trademark is to prevent product copying. The prime objective of a trademark is to avoid unfair competition among businesses that use customer ignorance to generate more revenue. For example, if a local cafe uses a golden, arching ‘M’ as its symbol, customers may mistake it for McDonald’s. Creating this sort of misunderstanding is illegal under trademark law.
Trademark law serves two functions:
A trademark helps buyers distinguish different items.
A trademark safeguards the owner’s capital as well as his or her reputation.
Types
Brand
There are various kinds of brand names, such as:
Initialism (initials of anything),
Descriptive (name with the advantages of the product),
Foreign words (words from some other language),
Founder’s name (names of real personalities),
Combination (combining multiple words to make one).
Trademark
There are various kinds of trademarks, such as:
Service marks (source of products),
Fanciful, arbitrary, and suggestive trademarks (the strongest and most protected trademarks),
Simply descriptive,
General and descriptive (weakest trademarks),
Trade name (identifying the company as a whole).
Scope
Brand
Not all brands are trademarks. A brand is a visual object that is grounded in reality yet reflects customer views and, in some cases, peculiarities. Eventually, a brand is something that customers associate with. As a result, the scope of branding goes beyond boundaries.
Trademark
All trademarks are brands. The registration of a trademark provides protection for a company’s current business. The scope of protection is fairly broad since it applies to both identical and similar trademarks.
We can see this relationship from a diagram given below:
Association
Brand
The brand name is closely associated with the work environment, identity, purpose, and reputation. Simply said, the brand name serves to address the question, “what is the firm all about?“
Trademark
A trademark is associated with packaging, a logo, and a colour combination. It will safeguard the company’s brand by preventing competitors from using the same mark, which may mislead the customer.
Legal difference
Brand
When we discuss the brand name, it is clear that it isn’t legal in any manner. The corporation chooses a name for its goods or services either randomly or after doing considerable analysis. Because there is no legal obligation associated with the brand name, you are free to pick anything you believe is best for your brand.
Trademark
Whenever you talk about a trademark, you may be assured that it legally represents your goods and services. There is a legal obligation associated with the trademark.
Limitations
Brand
The brand name is only secured in the state where it is registered. It implies that nobody else is allowed to adopt the brand name within the same state. However, you can’t stop other states from using it in a different sort of business or industry.
Trademark
Trademarks are intellectual property that secures the brand’s identity by lawfully establishing that the mark is not being used elsewhere. It also provides government security.
Time duration
Brand
There is no time limit for using a brand name. Your brand should be able to survive for as long as you want it to. Unless something unexpected happens, such as the selling of your business, a transfer in leadership, or a significant alteration in your market or product portfolio, your brand is the most essential and lasting expression of your firm and its ideas.
Trademark
Section 25 of the Trade Marks Act, 1999 provides that a trademark can be used and secured for ten years. It has to be renewed every 10 years. The renewal of a trademark enables the company to continue protecting copyrighted property. Section 25(3) of The Trade Marks Act, 1999 states that the Registrar shall give notice in the specified format to the registered owner at the specified time or even before the expiration of the last registration of a trademark.
Use
Brand
Other manufacturers and retailers can use a brand name. If any other manufacturer uses your brand name, then there is no punishment for it because it is not protected legally, and hence, anyone can use it.
Trademark
Trademarks can only be used by the owner or producer who has a legally registered trademark. But, as long as your services and goods are different from any other registered trademarks, you may use or even register them.
Legal identity
Brand
The brand name is not a legally recognised name. It’s just a brand name chosen by the corporation for a particular product. Consistent marketing and advertising result in constant brand identification and, as a result, continuous revenue.
Trademark
A trademark legally reflects a company’s products and services. The word ‘trademark’ has been identified by various legal bodies and statutes like the United States Patent and Trademark Office (USPTO), Trade Marks Act, 1999, etc.
Legal protection
Brand
A brand is not protected by any law. Anyone can use your brand name. If you want to protect your brand name, then you have to register it as a trademark.
Trademark
Trademarks are protected by the Trade Marks Act, 1999. The Act provides legal protection for trademark rights in India. It addresses trademark protection, registration, and the prohibition of illegal usage. It also addresses the privileges of the trademark owner, fines for violation, compensation for loss, and procedures for trademark transference.
Examples
Brand
Popular brand names should be distinct and attractive in order to raise customer awareness and encourage loyalty to the brand, such as Google, Nike, Samsung, Adobe, Oracle, etc.
A brand name might often be merely the name of its originator; for example, Martha Stewart, Ford, Kellogg’s, Ralph Lauren, and so on.
Normally, brand names are capitalised, but in the past few years, they have also been bi-capitalized, such as ‘eBay’ or ‘iPod’.
Trademark
The most frequent sort of trademark is a word or other collection of characters, such as GOOGLE, NETFLIX, IBM, NBC, etc.
Logos are most likely the second most frequent type of trademark. A logo is a design that develops into a mark when it is used in close relation to the products or services being sold. The logo mark does not need to be elaborate; it only needs to differentiate goods and services offered under the trademark from those other goods and services. NBC’s peacock design is one of the examples of logo marks.
Figure or scene images or drawings are frequently used as trademarks or service marks, such as Puma’s puma, Corning’s Pink Panther, Duke, the Java Mascot, Android, etc.
Sometimes, slogans are also used as trademarks. For example, the slogan for McDonald’s is “I’m lovin’it“.
Summarising the difference between a brand and trademark
Point of difference
Brand
Trademark
Definition
A brand is a name given to a product by its owner or manufacturer.
A trademark is a term, phrase, or symbol that is legally protected by statute.
Protection
A brand name is not protected legally. There is no legal obligation associated with the brand name.
There is legal protection given to the trademark. In India, trademarks are governed by the Trade Marks Act, 1999.
Nature
All brands are not trademarks.
All trademarks are brands.
Registration
Registration of a brand is not necessary.
Registration of a trademark is necessary.
Objective
The objective of the brand is to aid in the identification of a product and to give it uniqueness and differentiation.
The objective of the trademark is to stop duplication and copying of the product.
Example
The examples of brands include:Nike, McDonald, Apple.
The examples of trademarks include:Nike Swoosh, McDonald’s double arches,Apple with a bite taken out.
Grounds for consideration and non-consideration of the usage of brand vs. trademark
Reasons to consider using a brand vs. trademark
A trademark or service mark are essential safeguards against brand infringement. Trademarks can be used to prevent people from not only using your brand, but also from establishing one that is so close that it confuses customers and tricks them into believing they are purchasing a product linked with you. This is known as brand confusion.
Whereas trademark protection is automatic, if you need to sue somebody to safeguard your trademark, you will have the responsibility of showing that the mark originally belongs to you. If you have filed a trademark with the USPTO, use the ® symbol after the trademarked object.
Reasons to consider not using a brand vs. trademark
There are two types of trademarks: basic and registered. When you start using something to distinctively portray your brand, you may trademark it by adding the TM mark after it. This gives you certain legal protection if another individual tries to steal, misappropriate, or misunderstand your brand.
On a certain level, trademark protection is automatic the instant something gets connected with your brand, whether it is the word, a symbol, your designs, or any other thing. You do not need to register your trademark to acquire protection. For various people, this is sufficient cause to consider not using a trademark to safeguard their brand.
Conclusion
In normal conversation, the terms `brand name’ and ‘trademark’ are used interchangeably. The distinction between a brand name and a trademark lies in their function. The distinction between a brand and a trademark is as narrow as a thread, yet if not understood correctly, it can have serious consequences. The trademark has been registered, and it mostly includes the brand name, image, sign, design, words, etc. given by the manufacturer. In business, a brand is also a very important word for a producer or corporation to achieve an achievement.
Frequently Asked Questions (FAQs)
What is the significance of a brand?
Brands are essential because they add value to both people and businesses. They also give a company a competitive advantage in the market over its competitors. Successful branding increases a firm’s client base, which leads to confidence and credibility, which produces brand loyalty—all of which gives a business a competitive advantage in the market and a larger bottom line.
How do I choose a trademark?
There are two critical processes for choosing a trademark. First, you must pick a mark that attracts the consumer and uniquely distinguishes your product. Inherently unique brands benefit from automatic trademark protection as well. Second, a company can perform a trademark search to ensure that it is the first to use the mark.
What are the things that cannot be trademarked?
Section 9 of the Trade Marks Act, 1999 specifies the absolute grounds for the rejection of trademark registration. Trademarks that are not unique, that exclusively comprise marks that have become usual in the present language, that mislead or create confusion to the public, that harm any religious sentiments of a group or section, etc. are absolute grounds for denying registration.
Also, there are several trademarks that the USPTO does not recognise. They include any mark that contradicts a law, contains vulgar or controversial materials, or is similar to an existing registered trademark. scientific term, ‘compound’ or ‘substance’. Regional names, surnames, personal names, and frequent acronyms are also not up for trademarking.
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