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Is surrogacy legal in India

By
Sneha Mahawar
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0

This article has been written by Ananya Bose, a student at Hidayatullah National Law University, Raipur. This article talks about the legality of surrogacy in India; the laws about it; as well as the judicial views.

This article has been published by Sneha Mahawar.

Introduction

Surrogacy, as a generic term, is a legal arrangement between a woman, also known as the surrogate, and the intended parents who are willing to have a child. In modern times, this arrangement has become common and acceptable in society. Many people opt for surrogacy if the mother or the woman who intends on having a child cannot conceive one for a variety of medical or personal reasons. Having a baby is likely a threat to the life of a mother. Surrogacy is a blessing for parents or people who intend on having a baby but are unable to, which makes it even more important to have proper regulations on this matter. Surrogacy is legal in India in the form of Gestational Surrogacy.

Types of surrogacy in India

 There are two types of surrogacy that are in practice in India. They are:

  • Surrogacy in the traditional sense
  • Gestational Surrogacy

Surrogacy in the traditional sense

Traditionally, the eggs of the surrogate mother are used. Here, egg donation is not necessary since the egg of the surrogate mother is used. 

The intrauterine insemination method is used in traditional surrogacy. It is a simple method where the surrogate need not go through many fertility treatments. The intended mother need not take any treatment or undergo the egg retrieval process since her eggs are never used.

Gestational surrogacy

In this type, an egg donor is required to create the embryo that the surrogate mother would carry. Here, the In Vitro Fertilisation process is used. The embryo is created using the eggs of the intending mother and the sperm of the father, which then the surrogate carries. 

Surrogates usually prefer this type of surrogacy since there is no emotional connection, i.e., she is not the biological mother of the child.

This type of surrogacy is costlier since both the women need to go through different fertility treatments as well as egg retrievals.

Why was commercial surrogacy banned

While surrogacy is a boon for parents who are not able to conceive a child or a single parent who wants to start a family with a baby, it can also lead to the exploitation of the child as well as the woman conceiving the child. Here are a few reasons why commercial surrogacy is banned in India- 

  • The woman who has had the child or the one who is the surrogate is not treated well. This means that they have extremely bad living conditions and are often not paid even after the intended parents get the baby. The woman then has to take legal recourse and other methods that are both time-consuming as well as costly. Her body is just used to having the baby and then she is left without being compensated which creates mental, physical, and financial hardships.
  • Also, the commercialization of surrogacy has led to an increase in child trafficking. Child traffickers could easily get a baby by often paying a meagre amount or not paying at all.
  • There have also been cases where the child’s health is extremely poor, such as low weight is harmful to the child in the short as well as the long term.
  • Surrogacy has led to the commodification of children, raising ethical difficulties. It is well-known for breaking the bond between children and their mothers, as well as interfering with natural processes.
  • In addition to legal difficulties, surrogacy has psychological repercussions. Surrogacy-related legal and psychological issues have surfaced in India on various occasions. Women have been mentally harassed or intimidated in some instances of surrogacy exploitation. They get forced into the decision or their decision to become a surrogate is not respected.

Legal provisions relating to surrogacy in India

Following are some of the legal regulations that exist in India at the current time:

The Indian Council of Medical Research Guidelines, 2005

These guidelines were drafted to regulate the conduct of the Assisted Reproductive Technology clinics that provide surrogacy treatments in India. This guideline outlined how fertility clinics should employ Assisted Reproductive Technology (ART) operations or treatments. Although this was before the ART Bill, these Guidelines are solely advisory and are not legally binding.

The Surrogacy Regulation Bill, 2019

Commercial surrogacy is prohibited by the Bill, however altruistic surrogacy is permitted. Other than medical expenditures and insurance coverage throughout the pregnancy, there is no monetary remuneration for the surrogate mother in altruistic surrogacy. Surrogacy performed for a monetary gain or reward (in cash or kind) along with essential medical expenditures and insurance coverage is referred to as commercial surrogacy.

A ‘certificate of essentiality’ and a ‘certificate of eligibility should be granted by the competent authority to the intended couple.

There are a few conditions that need to be fulfilled to get a certificate of essentiality, which are as follows:

  1. A certificate of infertility is needed to prove that one or both members of the couple wanting to have the baby are infertile or unable to conceive a baby from a District Medical Board.
  2. The Magistrate Court needs to pass an order regarding the custody of the surrogate child.
  3. Insurance for 16 months in the name of the surrogate mother is needed after delivery of the baby covering the postpartum complications.

The offenses included under the Bill are

  1. Advertising surrogacy or commercialization of surrogacy.
  2. The exploitation of the surrogate mother by the intending parents.
  3. A surrogate kid is abandoned, exploited, or disowned.
  4. Selling or importing human embryos or gametes.

The penalty for such an offense ranges from up to 10 years of imprisonment and up to 10 lakh rupees fine.

The Assisted Reproductive Technology Act, 2021

In India, surrogacy is allowed for married couples who have Indian citizenship. However, in the case of Assisted Reproductive Technology Act(ART), it is available to all married couples, live-in partners, single women, and also foreigners. This bill has the provision for a National Board, having the authority granted by the Code of Civil Procedure to a civil court. According to the health ministry of our country, there are less than 1000 clinics for surrogacy while there are more than 40,000 for ART.

ART has become a source of medical tourism in India and the growth of clinics providing this service is increasing day by day. Gamete donation, intrauterine insemination, in-vitro fertilization, intracytoplasmic sperm injection, and pre-implantation genetic testing are all available.

India currently lacks established ART practicing clinics. The Lok Sabha enacted a Bill that regulates and supervises ART facilities and ART banks, despite concerns about their ethical, medical, and legal elements.

Under the provisions of the Bill, ART would consist of all the techniques which are required for an attempt to get the woman pregnant. From putting the gamete or embryo into a woman’s reproductive system to handling sperm or oocytes outside the human body.

The Act defines ART banks that would provide and supply the necessary items. These services would be available to women above the legal age for marriage but below the age of 50 and also to the man above the legal marriage age and below the age of 55 years.

Not only does the act provide for the ART banks and other facilities it all sets up boards for the regulation of the Act. 

NATIONAL BOARD 

This Board has been formed to suggest and advise the government on various policy matters. This Board recommends the necessary and minimum standards for the infrastructure labs, and manpower like doctors and nurses to be employed in the clinics and banks. These would see if the bill is being implemented properly as well as recommend changes with time. 

NATIONAL REGISTRY

It will feature a single database with information on all clinics and banks around the country, as well as the nature and types of services offered and the outcomes of those services. The register will submit the information to the National Board, which will use it to develop regulations and standards.

REGISTRATION AUTHORITY 

These would consist of a chairperson, who has to be an officer of the health department ranking above the joint secretary. A vice-chairman ranking above the joint director in the health department, a woman who holds an eminent position in a women’s organisation, a law officer from the department of law, and a registered medical practitioner that holds an eminent position in the field.

The registration authority’s responsibilities will include: granting, suspending, or cancelling the registration of ART centres; enforcing the standards and overseeing the law’s execution; complaints and feedback of any violation of provisions, pursuing legal action against the misapplication of ART, and initiating investigations; and suggesting to the National and State Boards on how to alter the rules in light of technological and social changes.

The Surrogacy (Regulation) Act, 2021 

This Bill was passed in early December of 2021. Some of the key features of the Act include the following-

  • All the clinics providing the surrogacy treatment and facilities need to be registered under this Act and people practicing in those clinics need to qualify as per the criteria given in this bill.
  • Every facility that performs surrogacy treatments must apply for registration within sixty days after the competent authority’s appointment. Every three years, registration must be renewed. 
  • Commercial surrogacy is prohibited in any form by any surrogacy clinic, gynaecologist, embryologist, or other medical practitioner. Only altruistic surrogacy is permissible under the 2021 Act.
  • The intending couple i.e., the couple wanting to have the baby must be legally married in line with the laws of India. The age of the female should be between 25-50 years and that of the male should be 26-55 years. Also, another important condition is that they shouldn’t be having any other adopted or conceived child through surrogacy or naturally.
  • The mother providing this service that is the surrogate mother needs to be between the age of 35-45 years. Any woman cannot be a surrogate mother more than once in her entire lifetime. 
  • The National/State Assisted Reproductive Technology and Surrogacy Board must provide a ‘Certificate of Essentiality/Infertility’ to an intended couple who has a medical need for surrogacy. 
  • The surrogate mother must be informed of all known negative effects and after-effects of the operation. In addition, the surrogate mother must provide written informed permission in the language she understands.
  • According to this Bill, there would be a Registry being installed called the National Assisted Reproductive Technology that would handle the registration of the clinic providing the surrogacy treatment. 

According to this Act, any couple who takes a baby through commercial surrogacy shall be held liable to pay a fine of up to 50,000 rupees as well as imprisonment of 5 years. Moreover, in case the same offense is committed multiple times, the fine shall go up to 1 lakh and the jail time to 10 years. Any individual, organization, or clinic found to be involved in the exploitation of surrogate mothers or children born via surrogacy faces a maximum penalty of ten years in jail and a fine of Rs ten lakhs. 

Lacunae in the Surrogacy (Regulation) Act, 2021

Beneficiaries of the Act

The Act is restricted to only two categories of people i.e., the intending couple who are legally married and according to the laws of India, and that have a certificate of infertility can use this facility. The couple needs to be between the age of 25 to 50 for the females and 26 to 55 years for the males. The other category is the intended woman who is either a widow or a divorcee between the age of 35-45 years can opt for this treatment. 

This eliminates a segment of the population, such as unmarried women who want to be mothers but are unable to conceive. The irony here is that, although purportedly embracing modernity, this legislation maintains the conventional taboo against childbirth without marriage. A woman is not allowed to use surrogacy services in case she wants to have the child but is not able to bear it due to many reasons.

Not only is the term couple been used only for a married couple of the legal marriage ages but leaves out any man and woman who are in a live-in relationship to avail of this service. This promotes the institution of marriage. This Act also leaves behind those couples where a partner or both of them suffer from chronic disease and there are chances for them to transfer the same to their baby, 

Although Section 4(ii)(e) allows surrogacy in circumstances when the National Assisted Reproductive Technology and Surrogacy Board identifies a condition or disease, the Act’s ambiguity about the conditions or diseases under which it is permissible endures and is subject to the Board’s view.

LGBTQIA+ community exclusion

In line with the gender bias that still exists in our society, this Act only allows a legally married man and woman in India to get a baby through this method, and thus the non-binary and the same-sex couple are not able to enjoy the parenthood even if they wish to. Though in the case of Navtej Singh v. Union of India, 2018, the Supreme court decriminalized homosexuality, same-sex marriage is still not legal in India hence homosexual couples do not come under the purview of this Act. The Sections also focus only on a man and a woman which only implies that only heterosexual couples can enjoy this facility.

They need to recognize the LGBTQ community is critical in promoting equality in society, which every citizen of India is entitled to under the Indian Constitution’s fundamental rights. The Supreme Court had to deal with the topic of surrogacy for the first time in the case of Baby Manji Yamada v. Union of India (2008). Surrogacy was acknowledged as a means of accepting parenting by the court, and the parent might be a single parent or a homosexual couple. The Act’s implementation has fully invalidated the latter. As a result, it is necessary to grant the status and privilege of bearing children not just to heterosexual couples, but also to gay couples and non-binary individuals.

Demerits of commercial surrogacy being prohibited

This type of surrogacy was made legal in India in the year 2002. However, the absence of laws and governing bodies for the commercialization of this process led to the exploitation of the woman and the child who was forced to live in bad and unhygienic conditions. The Law Commission of India in the year 2009 realized that there is exploitation and identified the need for the government to come up with the regulations for the same for the interests of the people. The 228th report mentioned how a woman or a wife in the Indian household is respected only when she can have a child hence proving the masculinity and potency of her husband. The existing poverty in India made the availability of surrogates cheap which led to their exploitation at various levels. 

Altruistic surrogacy is when the surrogate receives no compensation other than any expenditures that may be prescribed or incurred owing to insurance coverage or medical expenses. Meanwhile, commercial surrogacy happens when the surrogate’s services are marketed, and she receives ‘payment, reward, benefit, fees, remuneration, or monetary incentive in cash or kind’ in addition to the medical bills and other specified charges and insurance coverage.

While it is necessary to regulate surrogacy keeping in mind the exploitation, banning it is not a solution. In discussing the citizenship of the intended parents and remuneration of the surrogate mother to prevent exploitation, the government should try to regulate and monitor the laws. 

Another problem with the commercialization of this is the fact that here in the contract of surrogacy the object of consideration is a life i.e a human or a baby. Thus, while drafting a contract between the intended parent and the surrogate, the provisions must be written in such a way that they do not disadvantage any party and are drafted with the unborn child’s best interests in mind. Commercial surrogacy cannot be utilized as a source of income or exploited in any manner since Section 4(iii)(b)(IV) already forbids a woman from being a surrogate mother more than once. Where a surrogate is registered on an internet platform accessible to all licensed surrogacy clinics, proper restrictions can be made available to prohibit her from functioning as a surrogate more than once in her lifetime.

There are many countries like Israel, South Africa, and Russia that have tight laws for commercial surrogacy, and these are governed by the state authorities. The legalization of commercial surrogacy would help reduce the vast illegal market of surrogacy which put the surrogate and the child in a vulnerable situation. While there might be contention about the dignity of a woman when she is paid in exchange for her baby, these arguments are already settled in the case of Johnson v. Calvert. 

Thus, commercial surrogacy should be legalized since it not only serves to raise the living standards of the financially disadvantaged but also helps to prevent unlawful surrogacy from occurring as a result of a full prohibition on commercial surrogacy rather than regulation and control.

Traditional surrogacy must be included

As discussed in the sections above, two types of surrogacy exist. However, the 2021 act only allows for gestational surrogacy. Any woman who provides her gametes as a surrogate is prohibited under Section 4(iii)(b)(III). According to Section 8 of the Act, the surrogate child is treated as the biological child of the intended couple or intended woman, as the case may be, and has the same rights and privileges as a natural child under the legislation in effect at the time.

The traditional method is a very useful method that would help to include the LGBTQI+ community to have a child or those mothers who are unfortunately not able to produce healthy eggs for reproduction. Surrogacy like this is advantageous since it lowers the expense of the procedure. In comparison to gestational surrogacy, the amount of medical treatments that the surrogate mother must undertake is also reduced. In case, the intended mother’s egg fails to fertilize, there is no need to find another donor for fertilization since the surrogate’s egg can be used in that case. Furthermore, since the egg does not need to be retrieved with the sperm outside the womb, the intended father’s (or donor’s) sperm is simply artificially inseminated through the technique of intrauterine insemination or intra cervical insemination, and the process becomes less costly.

In this method, there is a link between the surrogate mother and the child biologically, hence in the case of such a process, the surrogate mother may be chosen as someone close to the intended parents’ line relatives, or close friends. The egg donor who is also a surrogate must give up her parental rights so that the intended couple can raise the kid together. Furthermore, the non-biological intended parent may be required to sign and complete the adoption procedures for the child after the birth to enforce the intending parents’ parental rights.

Judicial perspective around surrogacy in India

Baby Manjhi Yamada v. Union of India (2008)

Here, in this case, a Japanese couple came to India to have a baby through surrogacy. Now, they hired a woman from Gujrat where this practice of surrogate mother was prominent and hence the woman was the surrogate mother. Some marital problems arose between the couples and they got divorced. Now, the father of the child wanted custody of the child who was a girl. In India, a single father cannot adopt a girl child. In this case, the Supreme Court gave the rights to the grandmother of the child. The Supreme Court realized the need for regulated law for surrogacy. 

Jan Balaz v. Anand Municipality (2008)

In this case, a German couple, the intended parents hired a surrogate mother who gave birth to twins. This German couple worked in the United Kingdom, and their twins now required an Indian passport to travel. The passport officials refused to issue passports to the twins since they did not have citizenship because the procedure was being litigated in the court. There were no laws regarding surrogacy in Germany. The children were granted departure permission i.e., permission for them to leave the country, by the Supreme Court, and German authorities allowed them to adopt the children and fight for their rights.

Suchita Srivastava v. Chandigarh Administration (2009)

In this case, a woman having the mental age of 9 years old was raped and impregnated. She was living in a government institution and they came to know about the pregnancy in the 9th week of the gestation. Article 21 of the Constitution, covers the right of women regarding their reproductive choice and also other rights like carrying the baby for a full term i.e. 9 months, to give birth to the child, and her right to dignity, and privacy, the court held.

Justice K.S. Puttaswamy and anr. v. Union of India (2018)

The court found that obtaining and showing the certificate of infertility violates the right to privacy, that making it mandatory to have a certificate of infertility from the district medical board is also against society’s moral and ethical standards, and that this fundamental right must be protected.

The current scenario of surrogacy in India and the way ahead

With the increase in the number of IVF clinics in India, these have made a place for reproductive tourism to grow. People supporting commercial surrogacy see this as a commodity that can be traded. However, the reality is a bit different. Many legal and moral issues are currently surrounding commercial surrogacy.

Nonetheless, the highly disputed topic in India should be the surrogacy industry’s laissez-faire attitude, as well as the legal vacuum that allows for human rights violations, citizenship difficulties, health policies, and many other issues.

The needs, as well as rights of the woman, should be the core discussion in this modern era when it comes to surrogacy.

Some activists see full commercial potential in surrogacy. They see the ability of women to bear children as a tool to empower them in a society where they are exploited. When men get paid for being sperm donors, why can’t women be?

While there are a few who see the commercialization of the same as being socially and ethically exploitative, they also find the women being underpaid when working as a surrogate.

Women who have recurring failures must endure clinical procedures involving embryo transfer, miscarriages, and other health issues. Multiple embryo transfers, hormone therapy, and a high risk of sexually transmitted illness are all factors that must be considered. Other features of surrogacy include inadequate remuneration, the potential of human trafficking, a lack of understanding of the contract, constraints on choice, post-pregnancy concerns, mental health, and more. To support a ban, however, the damages to surrogates’ living conditions must be examined first.

Rather than outrightly banning it, effective regulations should be considered to prevent the exploitation and the emergence of the illegal market as well as human trafficking. It is time to awaken from this sleep and establish a new path based on strict regulation and enforcement procedures.

The laws should be formed such that they are in line with the feminist movement. In the case of an altruistic model, the surrogate mother goes through all the emotional and physical change just out of compassion which doesn’t seem to be practical. 

Thus, the “compensatory surrogacy model,” in which the intended parents cover losses in terms of health, wages, sufferings, and mortality, among other things, will be investigated.

Countries that have strong surrogacy laws 

Australia

Commercial surrogacy is banned in this region of the world. In the northern territory, there are no surrogacy rules. However, altruistic forms of surrogacy are allowed here. 

United Kingdom

Here, similar to India, commercial surrogacy is not legal but the other form is.

Spain

They have extremely strict laws and prohibit surrogacy in all forms. 

United States of America

There is no law on the federal level on surrogacy in the USA. However, there are some states here that have some regulations on commercial surrogacy.

Conclusion

Surrogacy in India is a complicated task. Many legal obligations need to be fulfilled even before starting the procedure. Not only this but there is also a social stigma around surrogacy. This process is still restricted mostly to the celebrities in India like Priyanka Chopra and Nick Jonas, Shilpa Shetty and Raj along with many others and we still find a lack of use of such procedures among the public. Though surrogacy is a great way for such couples to have babies, it has to become more acceptable among the people. If a woman is unable to give birth, the fact has to be accepted as it is.

There is a need to increase awareness in this field along with some clearance with regards to the pertaining law. There is a need to reconsider the banning of commercial surrogacy. The laws also need to be more inclusive of homosexual couples and single parents. There have to also be stricter laws governing the health of the child as well as the surrogate mother and their living conditions. Surrogacy is a blessing for couples or individuals who want to enjoy parenthood. 

FAQs

What claims does a surrogate have over the child?

Surrogates are not regarded as legal mothers in India. A surrogate mother cannot be biologically connected to the kid, according to ICMR Guidelines 2005.

Is it necessary to file a court application for a pre-birth and post-birth order in India, as it is in certain other countries?

In India, there is no need to file a court application for a pre-birth or post-birth order. Some nations, however, demand that they get a declaration decree from the intended parents.

What if the intended parents refused to accept responsibility for the child after birth?

The Indian law mandates the intended parents to accept the child and till now there has been no such case where the parents have refused to accept the child since they took so much pain to get that child. 

References 

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Types of torts

By
Rachit Garg
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0

The article is written by Nikhil Thakur from Manav Rachna University. In this article, the author seeks to explain the various kinds of torts. Moreover, the author has mentioned several landmark judgments of various courts to elaborate on the concept more deeply.

It has been published by Rachit Garg.

Introduction

The “Law of torts” is an overarching field of law. Basically, a tort is a wrong that is civil in nature and the remedy for the same is by way of a legal action that is a ‘suit’ for unliquidated damages. The basic notion behind the law of torts is that it is based on the maxim “Ubi Jus Ibi Remedium” which signifies; that where there is a right, there is a remedy.

The principle of tort is a common law principle, hence, the concept of tort was prevalent in the United Kingdom. Therefore, the concept of tort arrived in India with the arrival of Englishmen or the Britishers. In the contemporary period, Indian courts before applying the principle of torts which has evolved from the English law make sure that those laws are well-fitted within the contemporary Indian society.

Over the past, various types of torts have evolved and most of them have been enlisted and briefly explained in this article.

Torts

The term ‘Tort’ originated from the Latin word ‘tortum or tortus’ which refers to ‘twisted or crooked’. The term tort was introduced in English law by French lawyers or judges of the Norman and Angevin Kings of England.

Salmond stated tort as; ‘A civil wrong against which the remedy for the same is an action for unliquidated damages which is not a result borne out of violation of the terms of the contract, or breach of a trust, or infringement of any other equivalent liability’.

Constituents of tort 

Chiefly, there are 3 major constituents of a tort, that are;

  1. Wrongful act/omission 
  2. Legal damage
  3. Legal remedy

Wrongful act (act or omission)

Commission of a wrongful act or omission is an essential condition to hold a person liable under tort. The person or offender must have committed an illegal act or omitted something from doing an act. Liability under tort arises when the commission of an act amounts to infringement of a legal right or legal duty. Most importantly, those illegal acts and omissions must have been recognised under the law.  

Legal damage (injuria sine damno or damnum sine injuria)

The second essential ingredient for constituting a tort is legal damage. Damage refers to a loss or harm suffered by a person or aggrieved due to a wrongful act of another. Until or unless there is no legal damage, there shall be no action under the law of tort.

Injuria sine damno

The term injuria means ‘injury’, sine means ‘without’ and damno means ‘any physical loss’. The maxim injuria sine damno means an injury or damage caused to an aggrieved without suffering any physical harm. Therefore, it means an injury suffered without an actual loss. 

In a landmark verdict of Ashby v. White (1703), the plaintiff was a qualified voter. However, the defendant refused the plaintiff the right to vote. It was concluded that damage shall not only include money rather legal damages also against such restrictions. Therefore, if the said person’s legal rights are infringed may file a suit for remedies.   

Damnum sine injuria

This maxim is just a reversal of the maxim Injuria sine damno. Under Damnum sine injuria, the person actually faces losses or damages without any infringement or violation of a legal right. 

Legal remedy (Ubi Jus Ibi Remedium)

The third and another essential for constituting a tort is a legal remedy. One of the essentials for claiming remedies is to prove that the act so committed was a wrongful act. The most common remedy which is claimed under tort is through action in damages, while there are several other remedies which are claimed like injunction, restitution, recovery, etc. 

Ubi Jus Ibi Remedium

The law of tort has developed from the maxim Ubi Jus Ibi Remedium, which means there is no wrong if there is no remedy for the same or where there is a right there is a remedy.

Types of torts

Chiefly, there are four major categories of tort that are;

  1. Strict liability tort
  2. Intentional tort
  3. Constitutional tort
  4. Negligent tort
STRICT LIABILITY TORTINTENTIONAL TORTCONSTITUTIONAL TORTNEGLIGENT TORT
Dangerous activitiesAnimal attack, etc.AssaultBatteryConversionFalse imprisonmentDeceitTrespassNuisanceBivens actionCar accidentsTruck accidentsBicycle accidentMotorcycle accidents, etc.

Besides these abovementioned categories of torts, there are further 3 minor categories of torts, which are;

  1. Vicarious liability
  2. Absolute liability
  3. Defamation 

Strict liability tort

The principle of strict liability originated from a landmark judgement of Ryland v. Fletcher [1868] UKHL 1. In the instant case, ‘B’ a mill owner employed an independent contractor to construct or establish a water reservoir for the mill’s purpose. During the course of the construction of the water reservoir, the contractor came to know about the old shafts and passages on B’s land. The contractor without repairing those shafts completed the construction without informing the mill owner about such defaults. The cause of action arose on the day when the reservoir was filled with water and the water gushed through those defaults or shafts and flooded/devastated the adjoining mine of ‘A’. In response, ‘A’ sued ‘B’. When the matter went before the court, ‘B’ was held liable to pay the damages to ‘A’ under the principle of strict liability despite the fact that ‘B’ was not negligent but rather the contractor.  

Justice Blackburn explaining the concept of strict liability concluded that the rule of law is that, any person who brings upon his land and, collects and keeps anything likely to create mischief and if escaped, must keep it at his/her own risk and if it does not do so the person who brought such thing shall be held liable to all the damages that have been a result of such an escape.

Another landmark case, Crowburst v. A.B Board [1878], held that if a person grows a poisonous tree on his land and a horse of the neighbouring house happens to eat the leaves of such poisonous tree and the horse dies, the person who has grown such a poisonous tree on his land shall be held liable to pay the damages under the principle of strict liability.

Exceptions to the principle of strict liability

  1. Consent of plaintiff

In case, the plaintiff has given due consent or prior consent of the act, in such circumstances the doctrine of strict liability shall not apply, however, the concept of ‘volenti-non-fit injuria’ would still be applicable. In these cases, the defendant is immune from any kind of liability.

  1. Common benefit

In case, the thing which is in issue or is the source of danger or is used for the common benefit of both the plaintiff and the defendant, in that case, the defendant shall not be held liable.

In the famous case of Carstairs v. Taylor [1871], the defendant used to stay on the first floor and the plaintiff was staying on the ground floor. There was a common roof on which there was a box where water is collected and discharged through a pipe. One day, a rat gnawed a hole in the box and the water leaked out. The leakage resulted in damaging the goods of the plaintiff. Plaintiff filed a suit against the defendant and the matter went to court, and it was held that the defendant shall not be held liable because the drainage pipe was instituted not specifically for the benefit of the defendant but rather for the common benefit of both the parties.

  1. Act of stranger

If wrongdoing or mishappening was the result of a stranger’s action then the principle of strict liability shall not be applicable.

Under Richards v. Lothian [1913] UKPC 1, a stranger without understanding the consequences blocked the waste pipe of a lavatory fixed to the defendant’s house. Due to pressure, the plaintiff’s premises got flooded with wastewater.  As a result, the plaintiff filed a suit against the defendant. The Court held the defendant as not liable for the act so committed because the said act was the result of a stranger. 

  1. Statutory authority

When the Parliament or the state legislature have explicitly held a specific action to be excluded from the ambit of the principle of strict liability. In such cases, the principle of strict liability shall not be applied. 

  1. Act of God

‘Act of God’ is the most common way of defence to escape liability. The defendant merely has to prove the fact that the escape was inevitable or was not under the control of the defendant.

For instance; due to heavy rainfall, the tree on the farm of “A” fell on B’s building. In that case, “A” can use the defence of the act of god and escape the liability.

  1. Default of plaintiff

If the escape was due to the result of the plaintiff itself, then the plaintiff does not stand the right to claim compensation. The defendant cannot be held liable in that scenario.

For instance; Plaintiff went to a zoo and started teasing the tiger. The tiger attacked the plaintiff and the plaintiff succumbed to injuries. In that case, the sole responsibility is of the plaintiff only, hence, the zoo authority cannot be held liable.

Intentional tort

Assault and battery

Assault and battery are two distinctive forms of trespass to a person. An intentional application of force against a person is known as a battery. While assault means an action undertaken by the defendant that causes the plaintiff an apprehension of infliction of a battery by the defendant (presumption).

For an instance; if a person throws water on another person it is an assault. While the moment water strikes that person it becomes a battery. Similarly, merely pulling the chair away while the person was sitting on it is an assault, it becomes a battery soon that person strikes the ground/floor.

There are several cases with respect to assault;

  1. In R v. St. George (1840), it was held that mere pointing of an unloaded gun at someone shall not amount to an assault. While pointing the unloaded gun at dangerously close-quarter shall amount to an assault because there is a reasonable apprehension of such an impact.
  2. In Stephens v. Myers (1830), there was a general meeting where the chairman and the defendant were present. A resolution was initiated against the defendant for his removal. Laterwards, the defendant stood up and went towards the chairman, however, was stopped by another member present in the meeting. The act was held as an assault.
  3. In Cullison v. Medley 570 N.E.2d 27 (Ind. 1991), it was explicitly held that assault takes place when a person intentionally creates an apprehension of offensive physical contact with another person. Therefore, there is no actual physical touching but rather a connection of the mind. Hence, the damages recovered are for mental trauma and distress. 

Battery 

An intentional direct infliction of physical force against a person is known as a battery. It is essential to have direct physical contact without the consent of the person with an intention to harm for constituting a battery.

Chiefly, there are two categories under the battery that are;

  1. Criminal battery,
  2. Civil battery 

Criminal battery

A battery that is seldom considered a crime is known as a criminal battery. The intention of killing someone or maiming someone with a dangerous tool/weapon intentionally is sufficient to constitute a criminal battery.

Civil battery

A battery that is seldom considered a civil wrong is known as a civil battery. When a person does not have any intention to inflict harm against another person, however, executes such an act that inflicts harm to such person or had an intention and commits an act in furtherance of it is sufficient to constitute a civil wrong. Therefore, under civil battery, a person without having any intention to commit a tort can be held liable. 

Similarly, there are various cases concerning battery;

  1. In Cole v. Turner (1704), three things were highlighted that are;
  • Firstly, touching anyone out of anger constitutes a battery,
  • Secondly, touching anyone gently (having no anger) is not a battery,
  • Thirdly, using violence against another is sufficient to constitute a battery.
  1. In Garratt v. Dailey 46 Wash. 2d 197, 279 P.2d 1091 (Wash. 1955), in this case, it was held that with respect to the intentional tort of battery a person committing the act or the defendant shall be aware of the impact or repercussions attached to it. Further, it was stated that even a five-year-old kid can be held liable for committing an intentional tort of battery. Therefore, even a minor is not immune from the effect of the battery.

Defences against the tort of assault and battery

There are several defences that may be claimed against the tort of assault and battery;

  1. Self-defence; a person while safeguarding or protecting his/her person, family or property may resort to self-defence which is a natural right recognised under the law.
  2. Right to expulsion; as a matter of right a person may expel another person who is a trespasser to his/her property (without consent).
  3. Right to retake the property; law recognises using force to retain one’s legal property. (circumstantial evidence shall be considered)
  4. Volenti non-fit injuria; if a person willfully places himself in a position where he/she may be subject to harm and harm is inflicted in such a case no defence can be claimed for the damages. This remedy is generally claimed on behalf of the defendant against the plaintiff.
  5. Arrest; law recognises arrest and obligates the police officer to arrest a person who has committed a tort.
  6. Force by authority; guardians, parents, boss, and the captain of the ship may in the authoritative position use force to correct the mistakes of the subordinate. 

Conversion

A conversion is a wrongful act of gaining possession of the goods of another person through a wrongful means. The person under possession denies the title to the rightful owner. Chiefly, there are three major essentials of conversion that are;

  1. Wrongful gaining possession of the goods.
  2. Abusing possession,
  3. Denies title to the rightful owner.

Components of conversion 

Wrongful gaining possession of the goods

An important essential for constituting conversion is intention. For an instance; that a person “A” intends to steal some goods of “B” and eventually steal them amounts to conversion.

To better understand the concept, there is a case of Foldes v. Willoughby (1841), in which there was a person “A” who along with his horse embarked on “B’s” boat. However, while sailing B left A’s horse on the shore and went the other side with A. A filed a suit against B and claimed that B had committed the tort of conversion. The Hon’ble Court deciphered that there was no conversion as B had no intention of stealing A’s horse.

In Richardson v. Atkinson (1876),  the defendant drew out some quantity of wine from the cask of the plaintiff. The defendant after taking some quantity, filled the cask with water to hide what he has taken. The matter went to court and it was decided that the defendant was liable for the tort of conversion as he had the intention of stealing the plaintiff’s wine.

Abusing possession

A person may gain possession of the good of another person as a bailee, pawnee, trustee, etc. In case, such person as bailee, pawnee, trustee, etc. abuses his power and sells off or disposes off the said entrusted goods is said to have committed the crime of conversion.

For an instance; ‘A’ as a trustee has been given the possession of an egg which belongs to ‘B’ for custody purposes. ‘A’ intentionally or knowingly made an omelette out of such an egg is said to have committed conversion.

Denies title to the rightful owner

Denial of title to the rightful owner of the good amounts to conversion. For an instance; “A” the owner of the mobile dropped it on-road and by the time he picks it up “B” another person took it and claim such mobile as his, B is said to have committed conversion.

As a general rule, the finder of the good has every right over the found property except against the real or the original owner. In case, the rightful owner claims nothing, the finder of the good has every right against anyone.

In Armory v. Delamire 93 ER 664, a sweeper while cleaning the chimney found a piece of jewellery. Sweeper handed possession of such a piece to the defendant who went to a goldsmith for valuation purposes. Later, the defendant refused to hand over the jewel back to the sweeper. It was decided that the sweeper shall be entitled to such a piece of jewellery because he had a better title in comparison to the defendant. 

In another famous case of Bridges v. Hawkesworth (1851), a customer entered the shop of the plaintiff and found a bundle of currency notes on the floor. The owner had no clue about those bundle of notes, however, claims the bundle as his. Finally, it was decided that the customer is entitled to those currency notes, not the owner because the owner never had custody of those currency notes before the customer had possession of them.

False imprisonment

Inflicting bodily restraint on anyone without the authorisation of law is known as false imprisonment. The restraint is upon man’s liberty to freely go and move.

In Robinson v. Bui Main Ferry Co. Ltd. (1910), the plaintiff had paid a certain sum of money to enter a dock for sailing to the next intersection. However, to come back, the plaintiff had to pay the money again but he refused. It was explicitly held that the defendant shall not be liable for the tort of false imprisonment because the defendant as a toll receiver can prevent the plaintiff from evading the payment. Therefore, the defendant shall satisfy the court that he has reasonable justification concerning the detention of the plaintiff. 

Deceit (Negligent misstatement)

Deceit means false or a wrong statement made by any person upon which another person got influenced and acted upon it and incur harm or losses.

In the landmark case of Peasley v. Freeman (1789), the concept of deceit was further expanded. In the said case, the defendant assured the plaintiff that “A” is a trustworthy person to be allowed a credit of money. However, the assurance was false due to which the plaintiff incurred the loss. Therefore, the defendant was held liable for committing the tort of deceit.

Essentials of deceit are as follows;

  1. Making a false statement,
  2. Knowledge of the fact that the statement so made is false,
  3. Intention to make the plaintiff act upon such a false statement,
  4. Plaintiff incurs losses

What all things are not considered as deceit;

  1. Mere silence shall not amount to deceit,
  2. Mere promise shall not amount to deceit,
  3. Mere opinion shall also not amount to deceit.

In Edginton v. Fitzmaurice (1885), a company raised debentures and stated that the said debentures’ money shall be used for purchasing vans for the purpose of the company. However, the said money was utilised to pay off outstanding loans of the company. The said act was held as deceit.

In Candler v. Crane, Christmas and Co. (1951), the accountant of the company prepared the accounts of the concerned company and influenced the plaintiff to invest a certain sum in the said company. The plaintiff acted upon it and invested. The plaintiff incurred a few losses and it was held that it was a mere careless misstatement, hence, it shall not be actionable until or unless there was a contractual relationship among the parties. 

Trespass to land

Specifically, trespass means entering someone’s estate, property or land without the permission or consent of the lawful owner.

Chiefly, there are two essentials of the trespass;

  1. Invasion into someone else’s property or land

The lawful owner shall have all the right to exclude all others from his property, land or estate. The owner has the right to quiet and peaceful enjoyment of his/her property. Anyone who invades or enters his/her property is said to have committed trespass. The invasion need not be forceful, hence, an invasion be it so minute is trespass.

  1. Without due permission of the lawful owner

Any invasion without due permission of the owner shall amount to trespass. Trespass need not be in person it can be through one’s chattel or domestic animal like cow, horse, etc

Trespass ab initio

Trespass ab initio means a trespass which is a trespass from the very beginning. In this case, a person lawfully enters into the premises of another person, however, during the stay, he/she abuses their authoritative position, hence, trespassing ab initio. An important condition to constitute trespass ab initio is that the person in default must have abused his position/ stance by doing some act.

In the Six Carpenter’s (1572) case, it was held that if an electrician or a carpenter enters the premises lawfully, however, commits some act that resulted in the damaging of the property or belongings of the plaintiff shall be held liable under trespass ab initio.

Remedies available against trespass

  1. Right of re-entry
  2. Suit for recovery of land
  3. Suit for mesne profit (any profit gained by a person from the land without legal authority) 
  4. Jus Tertii (right of the third party like easementary right)

Defences available against trespass

  1. Right by prescription
  2. License
  3. Authorised by law
  4. Abating a nuisance (invading into someone’s land is justified if it is for the purpose of avoiding nuisance)

Nuisance

Nuisance has been derived from the french word ‘nuire’ which means to hurt or annoy.  According to Winfield, nuisance is incapable of having an exact definition, however, any illicit interference with a person’s use or enjoyment of land or some right is known as a nuisance.

The concept of nuisance is based on the maxim ‘Sic utere tu et alienum non laedas’ which means to use property in such a way that it does not impact the rights of others. 

Types of nuisance

Chiefly, there are two categories of nuisance;

  1. Public nuisance and
  2. Private nuisance

Public nuisance

A public nuisance is a crime because it affects the peace, tranquillity, harmony, convenience, etc. in the society at large. For an instance; creating obstruction at the national highway.

In Soltan v. De (1851), there was a catholic church in the residence that rings the bell all throughout the day. A suit against the same was filed. It was held that the ringing of the bell throughout the day is sufficient to be covered within the scope of public nuisance, therefore, an injunction was granted.

Private nuisance

A nuisance that impacts the rights of a specific person is known as a private nuisance (no implication in public). The remedy that can be claimed for private nuisance is a civil action for damages or injunction. 

A few instances of private nuisance are as follow;

  1. Obstructing the light and air of the plaintiff,
  2. Playing loud music
  3. Knocking doors without a reason, etc.

A private nuisance is further divided into two types;

DAMAGE TO PROPERTYPHYSICAL DISCOMFORT
There shall be damage to the property of the plaintiff.The act must be in excess of the ordinary course of enjoyment.
For example; loud noise, trees falling, water leakage, etc. For example; obstructing the passage of air and light, heart patients and neighbours playing loud music, etc.

In Robinson v. Kilvert (1889), the defendant used to stay on the ground floor where he manufactures or produces paper boxes. On the first floor, the plaintiff had stored important sensitive papers. Due to heating from the ground floor, the plaintiff’s paper got spoiled. It was held that even in normal conditions the plaintiff’s papers were sensitive, therefore, the defendant was held not liable.

In Heath v. Mayor of Brighton (1908), the defendant’s power station used to produce a huge amount of noise and against which the nearby church filed a suit because it affects the sermon. However, it was held that the noise never affected the attendance of the sermon hence, there was no nuisance.

Constitutional tort

Bivens action 

Bivens action is a concept that has evolved in the United States of America (USA). Bivens action is that type of action where the plaintiff files a suit against the federal officials for violating those rights that are protected under the Constitution of the United States of America.

The concept of Bivens’s action found its origin from the US Supreme Court judgement of Bivens v. Six Unknown Named Agents 403 U.S. 388 (1971). Specifically, If the constitutional right of a person has been violated, the aggrieved may bring an action directly or personally against the federal officer.

The burden of proof is upon the plaintiff to prove that the federal officer (US) has violated certain constitutional rights of the plaintiff. Moreover, when the violation has been proved the plaintiff shall satisfy the court that there were some damages incurred.

Exceptions to this concept

  1. The federal officer while performing the adjudicatory function is immune from Bivens’s action as held in the case of Butz v. Economou, 438 U.S 478 (1978). 
  2. The President of the United States of America (USA) is absolutely immune from Bivens action as held in the case of Nixon v. Fitzgerald 457 U.S 731 (1982).

Negligent tort

Specifically, negligence means an infringement of a lawful duty by the defendant against the plaintiff that has resulted in undesirable damage. In proving the tort of negligence, the plaintiff must satisfy the court that the defendant owed a duty of care which he/she has violated and resulting in damages. 

Essentials of negligence

Chiefly, there are three essentials of negligence;

  1. Duty to take care,
  2. Breach of duty
  3. Undesirable damage

A leading case in respect to negligence is Donoghue v. Stevenson (1932), in the instant case, the manufacturer used to sell ginger beer in opaque bottles to the retailers. One day, the plaintiff along with a girl went to the retailer and bought the beer. The girl after consuming it found a dead snail in it and fell sick. A suit was filed.  it was held that a person shall take reasonable care to avoid those acts that can be reasonably foreseen. Further, it was observed that it is the responsibility of the defendant or the manufacturer to take reasonable care that the bottle did not contain any noxious substance in it. It is a milestone case in this respect, hence, is considered a statement of law.

In Blyth v. Birmingham Waterworks Co. 11 Exch. 781, Justice Alderson B. defined negligence and said that it is an omission or an act that a prudent person would refrain from doing it. These are the objective standards of a prudent person. It applies the ‘forsee-ability test’.

In Narayan Puno v. Kishore Tanu (1979), it was explicitly stated that it is the duty of the plaintiff to prove that the defendant was negligent.

In Roe v. Minister of Health (1954), a doctor administered a spinal anaesthetic to the plaintiff for conducting an operation. The anaesthetic contained was not in a good condition due to which the plaintiff got paralysed. The doctor had taken all the care a prudent person would have taken, hence, the doctor was held not liable.

In Bolton v. Stone (1951), the plaintiff was moving on the roadside and got injured after a cricket ball struck him badly. The ball came from a yard that was almost more than 100 yards away from the main road. The matter went to court and it was held that the defendant shall not be held liable for such an act because the hit was so exceptional that no prudent or reasonable person would have foreseen such.

Most importantly, there shall be an injury to the plaintiff which is the direct consequence of the negligent act of the defendant.

Vicarious liability

The liability where the master or the principal or partner or the employer is held liable for the tort committed by his/her servant or agent or another partner or employee. The concept of vicarious liability is based on the maxim ‘Qui Facit per alium Facit per se’ which implies that “he who acts for another, acts for himself”.

Qui Facit per alium Facit per se was inadequate to explain the reason as to why the master is held liable for the tort committed by his/her servant. Over the years, various theories came into existence like; the General Command theory or Particular Command theory, however, both fizzled to explain the reason. Hence, the modern theory came into existence and stated that the master is held liable for the tort committed by his/her servant because the master is the authority under whose direction such servant executes his/her work.

Specifically, a servant is one who acts under the guidance of his/her master. The master is not only in the position to order the servant to work rather also obliged enough to control the work. The rule is that the servant works under the thumb of his/her master. The master even has the power to remove the servant.

Chiefly, there are four major categories under vicarious liability.

Categories of relationship in vicarious liability

  1. Principal-agent relationship

The person who acts on behalf of the principal is known as an agent. Hence, any wrong committed by the agent during the course of his/her employment is said to have committed a tort under the instruction of his/her principal. Therefore, the principal shall be held liable for the act committed by his/her agent. 

  1. Master-servant relationship

Similar to the principal-agent relationship, the master shall be held liable for all those acts committed by his/her servant. Most importantly, the act so committed must be executed during the course of the servant’s employment’ otherwise, the master shall not be held liable.

The phrase within the ‘course of employment’ means and includes;

  1. Performing an authorised act, or
  2. Performing an authorised act in an unauthorised way, or
  3. Performing an act that is incidental thereto.

If the servant has committed a tort during the course of his employment and the said act comes within the framework of any of the above-mentioned provisions, the master shall be held liable. The master is liable for the carelessness, mistake or wilful wrong of the servant.

In the case of Central Co. v. Northern Ireland Road Transport [1942], there was a driver who was transferring petrol from the lorry to the tank. While transferring the same, the driver lit up the cigarette and negligently or carelessly threw it on the floor without any ill will or intention. Due to such an act, the area got exploded and the adjoining property of the plaintiff got damaged. The matter went to court and the plaintiff accused the defendant’s master and held him liable for the careless actions of the driver. It was held that ‘though the act of driver was innocent, however, was enough to constitute a negligent act, hence, the master was held liable to pay the damages’.   

  1. Partner relationship

In the case of partners, all the partners are liable equally if any one of the other partners has committed a wrong or tort.

In the case of Hamlyn v. John Houston and Co. [1903], there was a company having two partners. One of the partners illicitly bribed the plaintiff’s clerk with the intention to extract confidential data concerning the employer’s firm. It was explicitly held that irrespective of the fact whether the other partner had the knowledge of the act of the other partner or not still both the partners shall be held liable. 

  1. Employer-independent contractor relationship

An independent contractor is a person who is duly appointed by the employer for performing a specific job. A servant is different from an independent contractor because the servant works under the control and supervision of the master while the independent contractor as the name suggests is independent of taking all his actions. Therefore, the employer in case of a tort committed by an independent employer is not liable.

However, this doesn’t mean that the employer is absolutely immune. There are certain exceptions when the employer is held liable;

  1. When the employer has committed the tort by himself/herself, or
  2. When the employer has authorised the independent contractor to commit a tort, or
  3. When the tort committed is covered under the scope of strict liability, or
  4. When there was negligence on the part of an independent contractor.

illustration; the defendant appointed an independent contractor to cut the trenches for the purpose of making a drain from his house. However, the independent contractor though completed the work but negligently filled the drainage. Due to such, the plaintiff got injured. The defendant was held liable because he is covered under the last exception.

Absolute liability

When a person or an entity is held liable for the tort committed without considering the element of fault or intention is known as Absolute liability. The nature of absolute liability is quite harsh.

In common parlance, absolute liability means when a person is held responsible without his/her actual default or excuse. Under absolute liability, there is no need to prove mens rea, whether the person had the intention to commit the crime or not shall be held liable.

In tort, if the defendant is held liable under absolute liability shall be made accountable to pay damages. The damages shall be based on the harmful act so committed (the gravity of the offence shall determine the amount of damages to be paid).

In cases of absolute liability, the plaintiff only needs to prove that the offender or the defendant has committed an act that resulted in damages and causality. Moreover, the plaintiff is not liable to prove that the defendant owed it a duty of care and all. However, the defendant despite having committed no negligence or executed the act in good faith shall be held liable. 

In the landmark Supreme Court case of M.C Mehta v. Union of India AIR (1987), the Supreme Court of India was of the opinion that larger the enterprises, larger will be the liability for compensation against damages. The compensation shall be determined on the basis of the magnitude of the enterprise as it will work as a deterrent. 

In the abovementioned case, the Supreme Court of India explicitly rejected the concept of strict liability as held in Ryland v. Fletcher [1868] UKHL and proposed the concept of absolute liability. Further, it was stated that corporations engaged in hazardous activities having potential disastrous effects on humankind shall be made accountable under absolute liability.

Defamation as a tort

Defamation is a tort when someone’s reputation is abused. It is an act of harming the prestige of such a person via making, publishing, etc a wrongful or false statement against a third party. In India, defamation is considered to be both a civil and a criminal offence. Defamation is considered a tort because every individual has the right to enjoy a good reputation, therefore, violating or harming someone’s reputation is considered a legal wrong, therefore covered under the purview of tort. 

In common parlance, defamation means the publication of a statement that is directed specifically against a particular person or organization or institution which has the capability of lowering a person’s/organizational/institutional reputation among the society at large. 

Section 499 of the Indian Penal Code, 1860 also defines defamation as; that any person by way of a word (Spoken or written) or by sign or by visible representation prepares or publishes any information with respect to a person with an intention to abuse his/her reputation.

Essentials of defamation

Chiefly, there are four essentials of defamation that are;

  1. False statement,
  2. Written or spoken,
  3. Defamatory statement (intended to abuse anyone’s reputation)
  4. Publication of such statement.

False statement

The primary and the foremost essential to constitute defamation is that the statement or phrase so made is a false statement and is specifically intended to harm or abuse the reputation of the person among the masses.

Written or spoken

The false statement so made can be either written or spoken. One of the landmark cases in this respect is Youssoupoff v. Metro-Goldwyn-Mayer Pictures Limited (1934), where the producer of the film namely “Rasputin, the mad monk” picturised a princess named “Natasha” who got raped by the mad monk. In response to the said film, princess Irina of Russia (wife of prince Youssoupff) claimed compensation on grounds that the reference to the mad monk who raped the women in the film was directed toward prince Irina. Twenty-five thousand pounds was allowed as compensation by the jury.

Defamatory statement 

Another important essential for constituting defamation is that the false statement so made shall be defamatory in nature (abusive to one’s reputation). Essentially, the word shall expose the person to contempt or hatred against his/her profession or trade.

The victim or the plaintiff shall satisfy the court of law that the reference so made by the accused or the defendant is specifically directed against him/her. In this case, the intention is immaterial.

If a statement is made by the defendant against a specific class or group of persons in that case also the plaintiff shall satisfy the court that the statement was directed against him. If a person says that ‘lawyers are thieves’ in that case no particular lawyer can sue because it was not made intentionally against a specific lawyer as held in the case of Eastwood v. Holmes (1860). However, when the word has a double meaning it is defamatory in nature and hence called ‘Innuendo’.

Publication 

Another important essential for constituting defamation is the publication of a false statement. Publication means disseminating/issuing/broadcasting/printing the statement so made among the public at large.

Conclusion

Therefore, from the above article it is clear that torts is a vast concept that inculcates various nuances under it. It is a very dynamic conception, hence, it is open to various other fields. The notion of tort is so alive that till now the 300-year-old case of Ryland v. Fletcher is applicable in modern scenarios. 

References

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Article 27 of the Indian Constitution

By
Rachit Garg
-
0

This article is written by Divya Raisharma, an undergraduate student at Government Law College, Mumbai. This article explains Article 27 of the Indian Constitution. It explains the freedom given under Article 27, its elements when the article is violated, and the correlation it has with secularism and freedom of religion. It also mentions the Constituent Assembly Debate on Article 27, relevant case laws and the frequently asked questions (FAQs). 

It has been published by Rachit Garg.

Introduction

Article 27 is a fundamental right in Chapter III of the Indian Constitution. It is listed under the heading of ‘Freedom of Religion.’ It gives citizens the fundamental right to not be compelled to pay taxes by the state, which would promote a particular religion or religious denomination. This right, in a way, protects the ‘freedom of conscience under Article 25 of the Constitution. It consists of four elements of importance, i.e., – person, tax, promotion, or maintenance of a religion or religious denomination. 

What is the freedom enshrined under Article 27 of the Indian Constitution 

Under Article 27 of the Indian Constitution, a person can not be compelled to pay tax, proceeds of which would be used to pay for the expenses incurred on the promotion or maintenance of any particular religion or religious denomination.  

Generally, tax is a compulsory obligation and liability of the taxpayers. But, this article frees a person from the obligation of paying any tax in case such tax funds would be used for the promotion or maintenance of any religion or religious denomination. 

For example: If a state imposes a tax for the promotion of the Hindu religion, it would be entirely lawful for a person to refuse to pay such a tax. 

Elements of Article 27 of the Indian Constitution

Definition of person

The meaning of the word ‘person’ in legal use differs greatly from its meaning in ordinary use. 

As per the Oxford dictionary, the word ‘person’ means an individual human being. But, when the same word is used in a legal text, we refer to the definition provided by the taxation statute of the General Clauses Act, 1897.

Hence, if the said tax is a tax under the Income Tax Act,1961, it would be necessary to refer to the definition of ‘person’ under the Income Tax Act. In case the statute does not define the term ‘person’, only then the definition mentioned in the General Clauses Act must be referred to.

As per the General Clauses Act, the term ‘person’ means: 

  • An individual; 
  • A company, whether incorporated or not;
  • A body of individuals, whether incorporated or not; and 
  • An association, whether incorporated or not.

As per the Income Tax Act, 1961, the term ‘person’ means:

  • An individual; 
  • A company; 
  • A Hindu undivided family;
  • A firm; 
  • An association of persons, whether incorporated or not;
  • A body of individuals, whether incorporated or not;
  • A local authority; and
  • An artificial juridical person.

Whereas, under the Central Goods and Services Act, 2017, a ‘person’ means:

  • An individual;
  • A Hindu undivided family; 
  • A company;
  • A firm;
  • A Limited Liability Partnership; 
  • An association of persons;
  • A body of individuals, whether incorporated or not, in India or outside India;
  • A trust;
  • A local authority;
  • Central or State Government; 
  • A society under the Society Registration Act, 1860;
  • An artificial juridical person;
  • A co-operative society;
  • A body corporate incorporated under the laws of a foreign country;
  • Any government company, as defined under the Companies Act, 2013; and
  • Any company established under a State Act or Central Act.

Tax

As per the Oxford dictionary meaning, the term ‘tax’ means a charge imposed by the government upon certain persons for the sake of payment of public services. 

The definition of the word ‘tax’ is not provided under the General Clauses Act. Hence, in search of its meaning, the definition assigned under the specific statute must be referred to. 

For example, as per the Income Tax Act, ‘tax’ under the Act means the income-tax chargeable under the provisions of this Act. Hence, if the said tax is charged under the Income Tax Act, it is pertinent to refer to the definition provided by the Income Tax Act.

As per The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar Of Sri Shirur Mutt (1954), the essential elements of a tax are as follows: 

  • It must be enforced as a common burden of taxpayers.
  • The purpose of collecting the tax must be for the state’s general revenue.
  • The proceeds from such a tax must go to the consolidated funds of the state.

Difference between tax and a fee 

It is essential that the contribution levied on a person is ‘tax’ and not a fee. Article 27 does not cover fees levied by the state.

DistinctionTaxFee
Purpose The purpose is levied for general revenue / public interest.The purpose is levied as a charge for special service rendered (quid pro quo).
CompulsionIt is compulsory for all.It is compulsory to persons rendering the service (they may or may not have a choice in availing of the service).
Quantum The quantum may depend on the person’s capacity.The quantum is mostly uniform.
FundsThe funds go to the consolidated fund of the state. The funds are earmarked to meet expenses in relation to the service rendered.
Reference in a particular list of the ConstitutionA reference for tax is made under the Union list and State list.A reference for a fee is made under the Concurrent List.

Promotion or maintenance of any religion or religious denomination

The state must have used such tax to promote or maintain any religion or religious denomination. Since India is a secular state, the government must not favour any particular religion or religious denomination. 

It is important that the intention of the state is to promote or maintain a particular religion or religious denomination. Hence, Article 27 is not attracted in a case where a state activity has some basis in a particular religion. This would tie the hands of the state in providing food subsidies to poor people just because a religion preaches the same. What the court looks for is the intention of the state behind the activity undertaken. The intent is judged and not the end result.  

Religious denomination

The definition of the religious denomination can be found in the case of S.P. Mittal v. Union of India (1982). The Supreme Court of India has defined a religious denomination as ‘a religious sect or body having common faith and organisation and designated by a distinctive name.’

This definition can be broken down as follows:

  • A religious body
  • Of common faith
  • Having a distinctive name

For example, the Shia sect and the Sunni sect in the Muslim religion.

When is Article 27 violated

Article 27 is violated when:

  • There is a tax;
  • Such tax’s proceeds would go towards the promotion or maintenance of a particular religion or religious denomination;
  • A person is being compelled to pay such a tax; and
  • The dominant purpose of the state behind levying such a tax is to intentionally and directly promote or maintain any particular religion or religious denomination.

Article 27 and secularism

Secularism is where the state endorses no religion as the state’s religion. A secular state should not give any preferential treatment to any particular religion. Many articles in the Constitution can be identified as articles making the Constitution secular. Article 27 is one of them.

Though Article 27 does not give the fundamental right to secular taxation laws, it undoes the legal compulsion to pay tax if the proceeds of it will be used for the benefit of a particular religion or religious denomination. It removes the compulsion to pay that otherwise would exist. It takes away the statutory liability on such unpaid tax amounts.

As per The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar Of Sri Shirur Mutt, the Supreme Court has declared the use of public funds for the promotion or maintenance of any particular religion or religious denomination to be against the Constitution. This is an effective prohibition on biased taxation laws by the state.

When the emphasis is put on the term ‘particular religion’ of Article 27, it would be wrong to say that government aid to all and every religion is allowed by the Constitution. To understand this, It is important to look at other articles under the heading of ‘Freedom of Religion.’Article 28 prohibits religious instruction in wholly government-funded educational institutions. Hence, the above interpretation is fully contradictory to the wordings of Article 28. It would also violate Article 25 as the freedom of conscience includes the freedom to not follow or believe in any religion. Hence, government aid benefitting every religion would violate the rights of atheists and agnostics.

Any interpretation of the term ‘specifically appropriated’ in Article 27 would not affect secular state actions, which, when performed in a religious institution, indirectly benefit the religion of the institute. For example, a government’s aid to an educational institute which imparts religious instructions to willing students is not violative of Article 27. 

Hence, the secularism in Article 27 is neither anti-religion nor pro-religion. Just as the ideals of Indian secularism, the secularism in Article 27 synergies the state activities and religion.     

Article 27 and freedom of religion

As per The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar Of Sri Shirur Mutt case, religion is a system of belief regarded by those who profess that religion to be conducive to their spiritual well-being.

Freedom of religion means the freedom to practice one’s religion or conscience without unreasonable restrictions. Article 27 is a fundamental right under the heading of ‘Freedom of Religion’.

On reading, Article 25 gives us the freedom of conscience, that is, the freedom to follow our conscience. Hence, if a person’s conscience suggests not to follow a particular religion, it is a right as per the Constitution. It also means, in a sense, the right to not be compelled to foster a particular religion or religious denomination. Article 27 is supportive of this interpretation of Article 25. As a person is not to be compelled to pay tax benefitting any religion, atheists’ right to their freedom of conscience is protected.

Under Article 25, the state is not prevented from regulating any secular activity which may be associated with religious practice. For example, the secular activity of regulating religious institutes for the purpose of better administration is allowed. When this statement is read with Article 27, we can also conclude that any tax imposed on the secular administration of a religious institute will not violate Article 27. This view is also upheld in the case of The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar Of Sri Shirur Mutt.  

Constituent Assembly debate on Article 27 of the Indian Constitution

During the constituent assembly debates, some Amendments were proposed to Article 27 by the members of the constituent assembly.

One of the proposed Amendments was by Mr Syed Abdur Rouf, wherein the addition of the words ‘wholly or partly’ was proposed. The said insertion would have made a specific appropriation of taxes, wholly or partially, violative of Article 27. This Amendment was opposed by Shri. M. Ananthasayanam Ayyangar. He deemed the Amendment unnecessary as the Article is sufficient enough to be interpreted as the same.

Another proposed Amendment which was discussed was by Mr Naziruddin Ahmad. He proposed the words ‘the proceeds of which’ to be substituted by the words ‘on any income of which’. He contended that taxes are paid on income and not on gross receipts. This is a different interpretation of Article 27 than the general interpretation. As per the general interpretation, the proceeds from taxes collected should not be used for the promotion or maintenance of any particular religion. But as per Mr Naziruddin Ahmad’s interpretation, the taxes collected from the proceeds/income of an undertaking should not be used for the promotion or maintenance of any particular religion. Mr. Naziruddin Ahmad’s interpretation takes into account only the income tax, while the general interpretation takes into account all kinds of taxes (for example, the goods and services tax levied on the price of the good or service)

Shri Ayyangar stood in the Article’s support. Though he made his comments as a reply to Mr Naziruddin Ahmad, he took a wrongful interpretation of Mr Naziruddin Ahmad’s proposed Amendment. As per him, Mr Naziruddin Ahmad’s proposed Amendment was to exempt the income of all temples and religious endowments. Notwithstanding that, he made an important statement that the Charter of Liberty and religious freedom should see to it that no religious denomination is given an advantage over another denomination.

Shri Guptanath Singh also misinterpreted the Article as an article exempting taxation on religious institutions’ property. 

At the end of the discussion, all of the proposed amendments were rejected by the constituent assembly.

Landmark case laws on Article 27 of the Indian Constitution

The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar Of Sri Shirur Mutt (1954)

Facts

  • The petitioner is the Mathadhipati of the Shri Krishna Math.
  • A suo moto proceeding was initiated by the Board under Section 62 of the Madras Hindu Religious Endowments Act (Act II of 1927) (hereinafter referred to as the earlier Act). Under this proceeding, a notice was issued to the Mathadhipati on grounds of  mismanagement. It also stated that a scheme is to be framed for the administration of the Math’s affairs in the interest of proposer administration of the Math.
  • The petitioner filed the petition in the High Court of Madras, praying for a writ of prohibition to prohibit the Board from taking further steps towards the scheme for the administration of the Math. 
  • While the petitions were still pending, the Madras Hindu Religious and Charitable Endowments Act, 1951 (hereinafter referred to as the new Act), was passed by the Legislature. The Act came into force on the 27th of August, 1951. 
  • In view of the earlier Act being replaced by the new Act, the petitioner was allowed to end his petition. 
  • After this, the petitioner questioned the constitutionality of the new Act.
  • In view of the above matter, the Madras High Court pronounced several Sections of the new Act to be unconstitutional as they violate the fundamental rights of the petitioner guaranteed under articles 19(1)(f), 25, 26, and 27 of the Constitution. 
  • The Commissioner came to appeal before the Supreme Court of India against the Madras High Court judgement.

Issues raised

  • Whether the Contribution levied under Section 76 of the Madras Hindu Religious Endowments Act a tax or a fee?
  • Whether such contribution violates Article 27?

Held

Before announcing the verdict, the Supreme Court made some important observations:

  • Tax is a compulsory and enforced common burden on the taxpayer. Its imposition is made without bestowing any special benefit to the payer. it is levied for the purpose of general revenue. The quantum of tax payable mostly depends on the capacity of the payer.
  • A ‘fee’ is generally defined as a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the government on account of the process of rendering the special service.
  • An example of fee is when money is set aside and appropriated specifically for the performance of some work, and it is not merged into the public revenues. In that case, it can not be a tax.
  • The State might consider it desirable to provide some special service to certain groups of people in the larger interest of the public. Then, those people must accept these services, whether they are willing to receive these services or not. 

The Supreme Court of India held that:

  • The contribution that has been levied under Section 76 of the Act shows characteristics similar to income tax as:
    • It depends upon the payer’s capacity and not upon the quantum of benefit that is supposed to be conferred.  
    • The institutions that come under the lower income group and have an income of less than rupees one thousand annually, are excluded from the liability to pay the additional charges under clause (2) of the Section. 
    • All the collections from Section 76 go to the state’s consolidated fund. 
    • All the related expenses are met out of the general revenues as seen for in other government expenses. The expenses are not met out of the collection from Section 76. 
  • The money raised by the contribution levy is not ear-marked for the government’s expenses to perform the services.
  • The contribution under Section 76 is a tax.
  • The object of the contribution under Section 76 of the new Act is the proper administration of religious institutions and the endowments attached to the religious institutions.
  • Hence, Article 27 is not violated.  

Mahant Sri Jagannath Ramanuj Das v. The State Of Orissa (1954)

Facts

  • In 1939, the Orissa Hindu Religious Endowment Act (further referred as ‘the earlier  Act’) was passed.
  • Every Math or temple with an annual income of more than Rs. 250 crores were required to pay an annual contribution at a certain progressive percentage of the annual income under Section 49 of the Act.
  • The said contribution was used to meet the expenses spent on the administration of the religious endowments.
  • Some Mahants challenged the constitutionality of the earlier Act.
  • The plea was dismissed.
  • When the earlier Act was replaced by the Odisha Hindu Religious Endowments Act of 1951, another plea was submitted challenging the constitutionality of the new act. 

Issues raised

  • Whether the contribution levied under Section 49 of the Act is a tax?
  • Whether Section 49 of the Act is violative of Article 27 of the Constitution?

Held

The Supreme Court held that:

  • The contribution levied under Section 49 of the Act is to be regarded as fees.
  • The object of the fees levied is the proper and secular administration of the religious institutes. The fees will be used to meet up administrative expenses.
  • Article 27 is not violated as the contribution levied is not a tax.
  • Article 27 is not violated because the contribution is not used to promote or maintain the Hindu religion.

Mustt. Nasima Khatun v. The State of West Bengal  (1981)

Facts

  • The Commissioner of Wakf, West Bengal served demand notices on the Mutawalli of the Wakf-alal-aulad under Section 59 of the Bengal Wakf Act, 1934 amended by the Bengal Wakf (Amendment) Act, 1973 demanding from them a certain amount towards the contribution of wakf fund and education fund.
  • The appellant moved to the West Bengal High Court against these demand notices, and alongside challenged the constitutionality of the Bengal Wakf Act of the year 1973.
  • The West Bengal High Court overruled the contentions of the appellant.
  • The appellant appealed to the Supreme Court.

Issue raised

Whether the provision of the Bengal Wakf Act violates Article 27?

Held

The Supreme Court held that:

  • The contribution to be made under the Act is a ‘fee’, and tax within the meaning of Article 27.
  • The purpose of the fee of the wakf fund is to realise secular and proper management of the Wakf property.
  • The purpose of the education fund is for the education of poor and meritorious Muslim boys and girls. Education is a secular matter and has no connection to religion. 
  • The contribution levied is a fee, and such fee would be used for secular purposes. Hence, it was ruled that the Act is not violating Article 27 of the Indian Constitution

K. Reghunath v. The State of Kerala (1974)

Facts

  • In Tellicherry, some places of worship were destroyed due to some unfortunate circumstances between the two communities, the Hindu community and the Muslim community.
  • The government passed an order that:
    • The government would bear the cost of the restoration of religious institutions;
    • The government will sanction an additional contribution of Rs. 10,00,000/- to the Distress Relief Fund at the disposal of the District Collector, Cannanore, for the purpose of meeting the cost of restoration; and
    • The District Collector could sanction expenditure of not more than Rs. 5000/- in each case. 
  • The petitioner has filed for a writ petition on the above-mentioned order. 
  • It was prayed by way of a writ of mandamus to direct the State of Kerala and the District Collector to refrain from spending public funds on the reconstruction of public funds.       

Issue raised

Whether the above-mentioned order violates Article 27? 

Held

The Supreme Court held that: 

  • The Distress Relief Fund is not appropriated from tax money as it is made up of contributions from the government, district and taluka committees, associations, clubs, public, etc.
  • Restoration of the damaged places of worship is not the promotion or maintenance of any religion.
  • The writ petition was dismissed.

Prafull Goradia v. Union of India (2011)

Facts

  • The Haj Committee Act provides for granting of a government subsidy for the Haj pilgrimage every year.
  • The petitioner contended that a part of the direct and indirect taxes he pays goes towards the Haj pilgrimage subsidy.
  • The petitioner speaks of the violation of Article 27 by provision of subsidy to Haj pilgrimage.

Issue raised

Whether the Haj Committee Act violates Article 27 of the Indian Constitution?

Held

The court held that

  1. Article 27 is attracted in 
    1. General statutes (such as the Income Tax Act) do not specify the utility, but a substantial portion is utilised for a particular religion; and 
    2. Specific statutes where it states that the tax levied will be utilised for a particular religion.
  2. If only a relatively small part of any tax collected is utilised to provide some conveniences, facilities, or concessions to any religious denomination, that would not be violative of Article 27 of the Constitution. 
  3. Only when a substantial part of the tax is utilised for any particular religion that Article 27 would be violated.
  4. Since there is no substantial utilisation of tax collected by way of direct and indirect taxation, There is no violation of Article 27.

Conclusion

Article 27 protects the freedom of religion from the misuse of tax laws by the state. It is important that the freedom of religion applies not only in the sphere of religious activities but also in the financial sphere. Since money runs the world, it is essential that the intersection of finance and religion is not ignored. 

The article also gives people the power to take a stand for secularism. As an act of united demonstration, the refusal to pay taxes which would promote a religion can be a tool of political pressure on the state. It can be used to send the state a message of withdrawal of support or loss of trust from the people in the event of a biased religious agenda of the State.

Frequently Asked Questions (FAQs) 

Is Article 27 available to non-citizens?

Yes, Article 27 is available to everyone regardless of their citizenship.

Which Article bans the collection of religious taxes?

No article in the Constitution bans the collection of religious tax per se. But the Article which comes closest to it is Article 27. Article 27 bans any compulsion to pay a religious tax. 

Is it a violation of Article 27 if I am forced to pay a fee?

No, it is essential that the contribution levied is a tax and not a fee. Hence, no one can seek violation of Article 27 if forced to pay a fee.

Is it a violation of Article 27 if private parties force me to pay donation money for the organisation of religious events?

No, a violation of Article 27 occurs only when the Union government or the state government of India imposes a tax. The fundamental rights are available only against the state. Any use of force by private parties to pay donations which would be used to promote a particular religion, as seen during the Ganesh Chaturthi festival, will not violate Article 27.

Can I be forced to pay a tax that would promote the religion I follow?

No one can be forced to pay a tax that would promote a religion, even if the taxpayer follows the same religion. It is a well-established judicial principle that Article 27 applies even if the person paying the tax belongs to the religion which would be promoted by such a tax. 

References 

  • DD Basu: Commentary on the Constitution of India, 9th ed, Vol 6
  • MLJ: Civil Court Manual Volume 10
  • MP Jain: Constitution of India

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Difference between democracy and republic

By
Sneha Mahawar
-
0

This article has been written by Nimisha Dublish of Vivekananda Institute of Professional Studies, GGSIPU, Delhi. The article explains the difference between democracy and a republic, along with their detailed meaning.

This article has been published by Sneha Mahawar.

Introduction 

There have been several debates in the country in the political arena. The debates have played a very major role in shaping the politics and economy of India. The tradition of debates is very ancient and acts as a way to put forth the views and ideologies of people in the public domain. India has struggled for independence and has acquired it after so many years. Now India is a democracy. However, there exists another aspect of politics, i.e., republic. In both a republic and a democracy, the people of the nation are given the power to be a part of the representational political system. The citizens are empowered to elect and choose the representative who shall protect their interest. In both the systems of democracy and republic, the officials who are elected, take an oath to protect the interests of the citizens. 

The limits that law places on the government define the difference between a democracy and a republic. In both the forms, a representational system is followed, which means politicians are elected by the citizens to represent their interests and form a government. Nowadays, most modern countries are democratic republics, and their constitutions can be amended by the elected government. 

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What is a democracy

A form of government where all citizens have the right to equal participation, directly or through their elected representatives, in the development and law making is known as a democracy. In this form of government, the voice of the majority is given preference over the minority, and the people are able to choose their own government. Once the majority government is established, the minorities have no say. Moving back to the origin of the word democracy; it is derived from the Greek words ‘demos’ meaning people and ‘kratos’ meaning rule. In simpler words we can say that democracy means “rule by the people”. Democracy allows the people to take part in the government and its political agendas. Back in November 1863, Abraham Lincoln gave a definition of democracy that was widely accepted by the world. The definition says,”…a government of the people, by the people, for the people…”

In democracies, the powers of the top rulers are put into limits by the constitution. Separation of powers and responsibilities is done to protect the rights and liberties of the people. In pure democracies, the citizens eligible to vote take an equal part in the lawmaking process. In other words, the majority in a pure democracy has all the power, whereas the minority has little or no power at all. 

In a representative democracy, which is also known as an indirect democracy, the eligible citizens are free to vote and elect the officials who shall pass laws and formulate public policies. The elected  representatives take care of the needs and viewpoints of the people. In participatory democracy, the citizens who are eligible to vote are required to vote for the appropriate policies. The representative is responsible for implementing these selected policies for the people. This gives the power to the people to decide the social and economic direction of the nation and its political operations. Both the representative and participatory democracies share similar ideas and adopt similar processes. However, participatory democracies involve a higher level of citizen participation  than representative democracies. There remains almost no country that specifically applies a participatory form of government. Most of the representative forms of democracies use citizens as a tool for social and political reform. 

What is a republic

The word republic is derived from the Latin phrase res publica which means ‘public affair’. In this form of government, social and political affairs are considered matters of public concern. In simpler words, a republic is a representative democracy in which the head of the state is elected, such as a president who serves for a limited time period. Since the citizens govern the nation through their representatives, the republics can be differentiated from the democracies on various terms. The republic is not only associated with democratic countries but also with other forms of governments like aristocracies, oligarchies, and monarchies in which the heredity of heads does not follow. Representatives are elected to make the laws, whereas an executive is also appointed to enforce the laws made by the representatives. To protect the minorities from the arbitrary whims of politics, representatives protect the inalienable rights of the minority citizens.  

Difference between democracy and republic

S. No.ParametersDemocracyRepublic
1.General philosophyThe people of a democracy have the power over how they are governed. However, the kings are seen as a threat in a democracy to the innate rights of the citizens. All citizens have an equal say in the decision made by the government.The republics are against the idea of forming a government by a single person. The citizens in a republic have equal say and have the power to make the decision through their elected representatives. To safeguard the interests of the minority, the inalienable rights of each individual is protected by the government. 
2. DefinitionIn a democracy rule by majority is followed. People may also elect representatives. There is no such protection given to the minority’s interest.The Republic follows the concept of representative democracy.
3.System Democratic political system is followed.The Republican political system is followed.
4.StructureThe social structure varies from state to state. Democracies resist the system of separation by class both politically and economically. The structure is not so different from the democracies. Here also, the social structure varies from state to state. Separation by class remains the main goal to resist both politically and economically. 
5.Economic system Democracies are the free market economies with the policies chosen by the elected representatives. The policies on the free economic markets are made by the people’s representatives.
6.Freedom to profess religionIn democracies freedom of religion is given but the majority deemed to enforce their religious practices over the minorities.There exists constitutional prohibitions for interfering with other’s religion. So every person has a right to profess the religion of their choice. 
7.Main elementsMajority rules and free electionsIndividuals rights and free elections
8.Country’s examplesAustralia, New Zealand, etc. The United Kingdom is also a democracy but with a monarch. The United States of America (USA) is a democratic republic.
9.TypesDirect democracy, Parliamentary democracy, Presidential democracy and Representative democracy.Democratic Republic and Constitutional Republics.
10.Government restrictions In democracies the majority can impose their will and decisions on minorities.In republics the majority cannot impose their will and decision on minorities and their certain inalienable rights cannot be taken away.
11.Disadvantages Majorities abuses the rights of minorities by imposing their will and decisions .Since the rights of the minorities are taken care of, there are constant debates and deadlocks.

History of democracies and republics

If we look back into history, then the democracies have proved to be older than the republics. However, it is difficult to trace down the very first democracy in the world. Many countries and tribes spread worldwide had some or the other democratic or republican procedures. The most early democracy, as per the records, was Athens, Greece, which was established in 500 BCE. The people of Athens were made to vote on every law of the country. This was considered a pure democracy in which the majority had all control over the rights and procedures. The most early republic, as per the records, was the Roman republic, which was established after the Athenian democracy around 500 BCE. At that time, the Roman Republic had the unwritten constitution which was made to adapt to the changing principles of the society. 

The republics have a unique feature which  protects the minorities by making and interpreting laws. There are some cases in the USA wherein the US Supreme Court and lower federal courts are empowered under the Constitution of the USA to decide on such matters.

In the case of Brown v. Board Of Education of 1954, the Supreme Court of the USA declared the schools which adopted the principle of racial segregation in public schools to be unconstitutional and such practice should be abolished. 

In Loving v. Virginia (1967), the Supreme Court overturned the laws of the states that banned interracial marriages and relationships. The states which banned interracial marriages were now made to abolish those laws. Interracial relationships are now allowed in the states. 

In Citizens United v. Federal Election Commission (2010), the Federal Election Commission had imposed restrictions on campaign financing. Citizens United sued the Commission over this issue. The Supreme Court of the USA ruled in favour of Citizens United and said that such restrictions are in violation of an entity’s right to free speech as per the First Amendment. 

The Supreme Court has all the powers to decide a case and even overturn a law that the judges find to be unconstitutional. 

Democracies and republics in today’s era

In today’s era, we hear so much about spreading democracy, but still there exist republics that rule the majority of the countries. In republics, the people directly appoint the representative who is the head of the government. People elect a legislature which decides the executive branch that is to be made. 

India : a democracy and a republic

India is a democracy, but the Constitution makers had a different idea when they drafted the Constitution of India. In the constituent assembly held on 20 November 1946, the objectives of the Constitution by Jawaharlal Nehru included the word republic and not democracy. On asking him regarding this, he said that the term Republic had a wider meaning than democracy but he didn’t tell the difference between the two. After some time, when the final draft of the Constitution was made, it included the word democracy and dropped the word republic. The final draft of the constitution declared India as a Democratic Republic. The framers of the Constitution believed that the nation should have the features of both a democracy and a republic. 

It was argued that India was declared a republic because it had the British Monarch as its former head. However, this was true but wasn’t enough to justify. Since the choice was made years ago by the constituent assembly, it is difficult to derive the exact reasoning for doing so. It’s only emphasis upon the formal features of the republic, and the deeper meaning for its advocates remains untouched. In the nineteenth century, many people who were fond of the concept wrote about Indian and western republics from different perspectives. One of the earliest spokesmen, Jotirao Phule, wrote and praised the spirit of love, equality, and commitment to public well being of the Republics. B. R. Ambedkar also had a similar view as Jotirao Phule and he was mainly interested in the republics of the French and Americans. Ambedkar read and researched closely on the republics when he was in Columbia University and thought of making India a powerful republic. He was influenced by the French Revolution of 1789 and its egalitarian spirit. He formed his Independent Labour Party in 1931 which later came to be known as the Republican Party of India. This happened after his death, but the wheels were already set in motion.  

All these and other advocates were inspired by different sources and had similar views regarding the republic form of government. They shared almost the same belief and have derived that the republic overlapped with the idea of democracy.

Conclusion

Since centuries we have seen that there existed several forms of government. Let it be a democracy, a republic or an amalgamation of both, i.e., a democratic republic. Both forms have their own pros and cons. Some feel that democracy is better than a republic or vice versa and others think that a democratic republic is better. But what we miss here is the demand of the nation. Not every nation can be ruled by democratic or republican ways. Every nation has a different functioning, political position, economic factors, etc. A nation chooses its form of government as per the requirements and demands of the people. Before analysing the situation of a nation on the basis of governance, one must brush up on his/her concepts regarding the forms of government that exist. 

Frequently asked questions

  1. What are the significant differences between a democracy and a republic? 

The significant differences between a democracy and republic are, Delegation of the government and number of citizens present in an economy. 

  1. What is a democratic republic and what is its relation with democracy and republic?

A democratic republic is a form of government which operates on the system adopted from both democratic and republic. Democratic Republic is related to both democracy and republic as it takes some or the other features of both the forms. The government tends to adopt the preferential features of both the type and implement it in its nation.

  1. What are the three major types of democracies that exist?

The three major types of democracies that exist are Direct democracy, Representative democracy and Constitutional democracy.

  1. What are the 5 types of republic that exists?

The 5 types of republic that exist are Constitutional republic, Presidential republic, Parliamentary republic, Federal republic and Theocratic republic.

  1. What are the most early examples of democracy and republic respectively on record?

The early example of democracy is the Athenian democracy and of republics is the Roman republic.

  1. When did the Roman Republic come into existence?

The Roman republic came into existence in 510 BC- 27 BC.

References

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

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First to file v first to use : comprehensive analysis of both systems in the context of trademark registration

By
Sneha Mahawar
-
0

This article is written by Mercy Munachimso Nwaogazie of 500 level law student of Nnamdi Azikiwe University, Awka, Nigeria and is enrolled in Diploma in US Intellectual Property Law and Paralegal Studies by Lawsikho. This article has been edited by Ojuswi (Associate, Lawsikho). 

This article has been published by Sneha Mahawar.

Introduction

Although Apple, Inc. used the “iPhone” trademark first, it lost its opposition against a third party’s registration of the mark before the Chinese Trademark Review and Adjudication Board. Conversely, a mere prior user won its opposition against another’s application before the Intellectual Property Office of Singapore. Thus, prior applicants and users can have the rights to it under specific conditions in different countries. Situations like these have spurred strategic business owners to make concerted efforts to protect their trademarks according to the laws of the countries they intend to conduct business. Indeed, despite the craze for trademark registration, the advantages available to owners depend on whether a jurisdiction upholds a first-to-file or first-to-use system of priority and the circumstances surrounding the case.

Trademark priority

Trademark priority entails who has the right to a trademark. There are two forms of priority and each determines the level of advantages or restrictions available to trademark owners. They are:

i. First to file

ii. First to use.

The first-to-file system

This system demands that whoever applies for the registration of a trademark first has the exclusive right to it, and it is immaterial that another used it first. The use of the mark in commerce is not necessary, at least at the point of application. 

Some first-to-file countries include China, Nigeria, United Arab Emirates (UAE), and Singapore.

Upon any issue affecting the rights to a trademark, the below benefits are enjoyed by the prior applicant.

Right against mere prior users

One’s registration will scale through even if prior use is raised by a third party. Despite Apple’s opposition and appeal to the court, an applicant registered the iPhone mark. Like other countries, in China, for others to be excluded from registering a trademark, it must be registered under the classes the owner wants. Apple’s loss arose from the fact that its registration was under a different class, hence technically unregistered. However, this system allows profiting from the goodwill of a brand. An extreme implication is where original owners pay these registrants to be able to use their trademark. Apple Inc. had to pay the registrant of its iPad mark $60 million to be able to sell its products in China.

Low burden of proof

During a claim for eligibility of a registrant or the validity of a registration, priority is often considered. All a party has to do is show the date of application. Where there are other factors to invalidate priority, the burden remains on the complainant to prove it to the satisfaction of the court/tribunal. 

Reduction in enforcement cost

Upon receipt of trademark applications, examiners often check for the likelihood of confusion with other registered marks. So, where another has filed a mark before an applicant, the registry will generally reject the application in favour of the first applicant. Hence, saving the registrant the cost of any proceedings against the applicant.

Limitations of the first to file system

Like China was until 1993, some jurisdictions exceptionally give advantage to prior applicants alone. Nonetheless, limitations abound, thereby the following remedies can be utilised by the parties.

Honest prior user

An honest user can invalidate the application or registration of a party. In Nigeria’s American Cyanamid Co. v. Vitality Pharmaceuticals Ltd, the plaintiff registered the GONOCIN mark in 1973 and subsequently sued the defendant for using the GONORCIN trademark for trademark infringement on the grounds of the likelihood of confusion. The defendant proved that he was continuously using the mark registered by the plaintiff since 1968. Consequently, the court held that the mark should not have been registered in the first place. The registration was then nullified.

Protection of well-known marks

By being well-known, a party’s trademark can be rejected or cancelled. In the Harrods case in UAE, two companies registered the trade name of the respondent. Relying on being well-known, the respondent claimed trademark infringement and the court cancelled the registrations in his favour. However, in Apple’s case, the courts were not satisfied that it was well known in China. Thus, making the standard for determining well-known marks high.

Bad faith

The proof of bad faith by a prior user can lead to the doom of an application or registration. In the Chinese case of Ambitmicro Technology Limited v. Ambiq Micro, Inc., the plaintiff had no business but registered a mark being used by the defendant. Having used the mark for years in different countries, prior rights and bad faith of the plaintiff were proven in favour of the defendant.

Concurrent use

Despite the existence of a prior applicant, where there has been a concurrent and honest use of a trademark by different people without any issues, registration by both entities is possible. In Thailand’s Jaspal Co., Ltd. v The Department of Intellectual Property, the plaintiff sought to register his trademark. The application was refused due to a likelihood of confusion against a third party’s registration by the board. Upon appeal to the Supreme Court, the court held that both marks are similar and could ordinarily cause a likelihood of confusion. Nonetheless, relying on section 27 of the Trademark Act, the Supreme Court held that the plaintiff proved honest concurrent use and declared that the mark was registrable.

Mere time differences

In countries like China, the system is not strict enough to apply to mere time differences. This entails that, where applications for similar marks are filed by more than one party on the same day (say 8th July 2022) but at different times (say 8 am and 3 pm respectively), the party who filed first (by 8 am) does not get priority. In that situation, the first user of the mark among them will gain priority and such party’s application will succeed. Nonetheless, where none of the parties has used it, a settlement will be reached by them to decide who should be the rights holder. Otherwise, registration for either will be based on a lottery.

The first-to-use system

Prior users have trademark rights in first-to-use countries and its continuous use must be shown. Ordinarily, use means employing something to achieve a purpose. Under trademark law, use entails employing a trademark for the sale of goods or services. Similarly, Section 45 of the Trademark Act (US) states it is the bonafide use in the ordinary course of trade. For example, placing a mark on a product or using it for promotional services. 

Some first-to-use countries are the USA, India, Zimbabwe, and Kenya.

This system is characterised by the benefits enjoyed by prior users. They are: 

Opposition of applicants

A prior application can be opposed by the original user. However, the party must prove that the mark was used in commerce or used in a way similar to it. In a USA opposition proceeding, Blast Blow Dry Bar LLC v. Blown Away LLC d/b/a Blast Blow Dry Bar, the opposer alleged the likelihood of confusion and prior use. The board averred that mere registration as domain names and LLC (by both parties) did not constitute use, as they were not published. The opponent’s lease agreement was private and the promotional efforts of the parties did not suffice since the numbers of people reached were not discernable. Consequently, the applicant could only rely on the date of filing (i.e., the date of constructive use) and the opposer’s promotional and hairstyling services (both before the application date) to establish actual use. The opposition was upheld.

Cancellation of a trademark

A prior user can cancel a registered mark upon proof of prior rights. In a USA Trademark Trial and Appeal Board (TTAB) proceeding named Boi Na Brasa LLC v Terra Sul Corporation a/k/a Churrascaria Boi Na Brasa, this issue arose. The prior user sought to cancel the registrant’s wordmark due to the likelihood of confusion with the former’s trademark, and the cancellation was successful.

Priority of senior users over junior users

They are the first and second unregistered users, respectively. Upon the senior user’s registration, the junior user’s right to use can be cancelled. However, they can concurrently use the trademark if there is no likelihood of confusion.

Low cost of trademark protection

Considering the costs of trademark registration, a brand may choose to opt for trademark protection based on mere use. This protection is regarded as common law rights in first-to-use jurisdictions. These rights are granted to trademark owners for using their trademarks in commerce. They do not have to register it for this right to accrue. However, this is dicey and almost unrealistic. This is because, in the long run, the brand may be forced to institute proceedings against unauthorised applicants or registrants, thereby incurring expenses. Furthermore, proving common law rights is harder than proving rights in a registered trademark. Consequently, any little technicality could make a party lose priority.

Limitations of the first-to-use system

They have made trademark registration desirable in use-based countries.

Limited protection

A prior applicant can register a trademark, but certain questions, like whether the applicant knew the prior user, or the likelihood of confusion, are considered.

A negative answer to any of these questions can limit the prior user’s protection to that geographic area the mark was used. In Boi Na Brasa LLC v Terra Sul Corporation a/k/a Churrascaria Boi Na Brasa, the prior user, who had a reputation in New Jersey and New York sought to cancel a registration. It was successful only in those states. This can be bad for prior users seeking wider protection.

Examination advantage

Trademark applications are often examined based on the date of receipt. Where a party files before the original user, the latter’s application will be suspended, pending the result of the former’s application. This may take years and can put the prior user in a weaker position.

Cost of proceedings

Although an original user can institute proceedings against unauthorised parties, this takes a lot of finances. Experts have estimated trademark lawsuits to be between $120, 000 and $750, 000 or even more. These expenses can be a problem for brands with limited operating budgets. Hence, crippling their finances, which may take time to recover. Those that do not pursue the matter may end up losing their rights. Either way, there is a sort of loss.

The intent to use basis

During trademark registration, use-based jurisdictions allow for a bona fide intent to use a mark. In this situation, trademark rights and priority will remain in the registrant and the date of application will be seen as the date of constructive use. Consequently, where another, who is technically the prior user, uses the mark, no trademark rights will accrue to such party. 

Foreign filed applications

Following the Paris Convention, countries that are signatories to it grant automatic priority to trademarks filed in other member countries. However, the trademark must be filed within some months. Consequently, even if someone first uses that mark in any use-based country, the foreign applicant remains the holder of the prior right within that period. 

Conclusion

There are various rights and advantages enjoyed by individuals in specified situations in first-to-use and first-to-file systems. The advantages and limitations of each system also depict their implications regarding trademark registration. Although the importance of trademarks has made individuals take proactive steps to protect and enforce them, they must wholly consider the systems of trademark priority in all the countries they care about. 

References

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Liberal nationalism

By
Rachit Garg
-
0
Federalism

This article is written by Parth Verma, a student of the School of Law, Christ University, Bengaluru. It seeks to elucidate the concept of liberal nationalism, its origins, and its contribution to the development of the world in current times.

It has been published by Rachit Garg.

Introduction

In this modern world comprising 8 billion people, there are a large number of groups and communities having their own unique language, culture, way of life, and even religious practices. However, as human beings, certain basic rights are to be provided to us, which can’t be taken away from us under any circumstances. Yet, in several nations, these rights are taken away from people belonging to minority communities. Such disparities between the different communities call for a need to stand together. This leads us to the concept of liberal nationalism, which plays a very important role in upholding this feeling of unity and oneness among the people. Yet, in recent times, certain restrictions are being imposed upon free speech, which is an integral part of liberal nationalism, of such deprived people when they aim to assert their rights.

Hence, this article aims to look into the impact of liberal nationalism on the people at an individual level and the country at large. Further, it has become very important to determine the pros and cons of liberal nationalism to check the applicability of this theory in India and other countries in current times. 

Nationalism and its types

Nationalism is the feeling of oneness among the people living within a particular territory of a nation. The spirit of nationalism spreads to the people when they start believing that they are all a part of the same union and when they discover some unity among them that would bind them together. In India, the spirit of nationalism developed among the people when they developed a sense of collective belonging among them at the time of the freedom struggle.

There are different theories of nationalism that are prevalent all over the world. Some of these examples are :

  1. Ethnic nationalism
  2. Language nationalism 
  3. Religious nationalism
  4. Expansionist nationalism
  5. Civic or liberal nationalism

All forms of nationalism aim to ignite patriotic feelings among the people and develop a sense of belongingness towards the nation, yet the means of achieving it are different. For example, expansionist nationalism aims to develop patriotism through the expansion of their territory by militaristic means. 

What is liberal nationalism?

Liberal nationalism is a concept that aims to develop a feeling of national identity by providing equal rights to all people regardless of their caste, creed, gender, religion, etc. It primarily focuses on equality in all respects for all the people in the country. It encourages the active participation of the citizens in the decision-making process, thereby providing legitimacy (public acceptance) to the state authorities. The underlying notion behind this theory is that all the people in this world are equal and, hence, must be provided with equal liberty, basic human rights, and equality before the law. 

This theory of nationalism had been suggested by Jean Jacques Rousseau in his book ‘The Social Contract’. He suggested that it is the responsibility of the government to protect and promote the rights of the people. His theory suggested the relationship that should be there between the citizens and the state, with the state protecting people’s rights. 

Hence, liberal nationalism is a theory that is built upon shared citizenship among the people within the state. A nation would be called ‘civic’ only when the political institutions or liberal principles are respected and upheld by the people of the nation. This theory is not affected by the ethnic diversity of any country, as equal rights are to be provided to all citizens regardless of their ethnicity.

Difference between liberal nationalism and ethnic nationalism

People are allowed to practice their fundamental rights in India without any discrimination and can lead an autonomous life as per their own will. Liberal nationalism, to a large extent, lays down the responsibility of the state to respect the rights of all communities and ensure that there are no ethnocentric decisions or approaches on their part. Ethnic or ethnocentric nationalism is the exact opposite of liberal nationalism. 

While liberalism focuses on empowering all the people from the various communities together, ethnocentrism focuses on the majority’s rights or preference for only one of the communities. It hampers the development of any nation. On the other hand, liberal nationalism helps in unifying the people across the country in a much better manner, whereas ethnic nationalism can create a division or a rift among the population by favoring the majority community over the minority. 

Yet in several situations, liberal nationalism can be combined with ethnic nationalism to constitute state nationalism. As per state nationalism, a country comprises a community of people who contribute to the maintenance and strength of the state. This is the basic objective of every human being who lives in a given country. 

Hence, liberal nationalism is a more inclusive theory than other forms of nationalism as it is very inclusive and accepting in nature. This is the primary reason that liberal nationalism still holds a lot of relevance in India and other countries.

Historical background of liberal nationalism

The concept of liberal nationalism had developed for the first time in Europe, after which it became a pervasive ideology in several countries. As discussed in the previous section, the concept of national unity has been developed to ensure equality and freedom for all people. The concept of liberal nationalism came up around the 18th century when Jean Jacques Rousseau introduced the Social Contract Theory. From thereon, a lot of events happened that led to the growth of this theory in Europe.

The Social Contract Theory

The Social Contract Theory has been developed by Jean-Jacques Rousseau and aims to establish a relationship between the people and the state. It aimed to address the questions on the origins of society, i.e., how does society gradually develop? Apart from this, it also aims to focus on the legitimacy of the state’s authority over any given individual. In addition, his theory mentioned the abolition of the monarchy and despotism, which became the basis of the French Revolution in 1789. His theory laid the foundation stone for the growth of liberal nationalism all over the world. The people of France obtained a sense of collective belonging that eventually led to the abolition of the Monarchy. This further inspired people all over the world to raise their collective voices. 

French Revolution

In 1789, the French Revolution took place, which laid down the idea of nationalism for the first time. There was a transfer of sovereignty from the monarchs to the French citizens, thereby making it a republic. This further led to the introduction of such practices which would help in creating a sense of collective identity (united community) among the people and equal rights for all as guaranteed by the law. This was a major development that took place with respect to liberal nationalism in the 18th century. 

Industrialization in the 19th Century

Coming to the mid-19th century, there was rapid industrialization taking place across France that led to the development of commercial classes. This increase in industrial production created new social groups such as the working class and the middle class, which were composed of industrialists who had good educational levels. They fought to abolish the privileges of the aristocrats and to develop national unity. This ideology gained a lot of prominence, which further contributed to the theory of liberal nationalism. 

German Revolution of 1848

In 1848, a serious attempt was made by the liberals to unify all the German-speaking states. The main cause of this revolt was the growing discontent among the people after the order imposed by the Vienna government. Though the liberals weren’t able to succeed in the German Revolution, the idea of individual freedom and civil equality was conveyed to the major sections of society as a result. Later, in 1871, Otto von Bismarck, the Prime Minister of Prussia, acknowledged that liberalism was everywhere in Germany. There is a need to mold it to shift its focus to realism, or ‘Realpolitik’. Similar revolutions also took place in other European countries, but none of those revolutions succeeded in 1848.

Further developments

After the Revolution, Germany disintegrated, whereas countries like Italy and Great Britain were unified. However, this unification brought with it several adverse consequences. The distinctive cultures of Scotland and Ireland were highly suppressed, thereby violating the principles laid down under liberal nationalism. This was because the English nation had steadily grown in power and wealth and hence aimed to impose their influence. In Italy, the rate of illiteracy was so high that many people were not even aware of the liberal-nationalist ideology. 

Yet all these events played a significant role in the development of the concept of liberal nationalism, which was conveyed to countries outside Europe as well. For example, this theory played a vital role in unifying the people at the time of the freedom struggle. This theory, as a result, permeated from Europe to several other countries and inspired various nationalist movements.

Liberal nationalism at a global level in current times

At this given point in time, liberal nationalism is enjoying one of its best phases all over the world. More and more people are joining together, and the theory is transcending international boundaries. They are fighting for basic human rights, global environmental rights, promoting sustainable development, and combating climate change. 

The ‘Black Lives Matter’ campaign, launched initially in the USA, was to restore the basic human rights of black citizens in the USA. This movement was launched after the murder of George Floyd by the police while he was in police custody. This is a form of liberal nationalism in which not only the aggrieved community but all the communities in that country join together to fight for equality and freedom. Finally, mass protests took place in support of the black community worldwide, and finally, their rights were also restored.

The Indian Freedom Struggle was the prime example of liberal nationalism in India, which paved the way for a large number of measures and initiatives to be introduced in the future. The initiatives to protect women from facing any domestic violence, focusing on the reduction of infant mortality, and reservation for representation of disadvantaged sections of society in Government jobs are all examples of liberal nationalism in India. These aim at ensuring equal opportunities for all, thereby promoting their right to livelihood. 

The battle against climate change has brought the world together since it is a common problem faced by the entire world. It was a form of liberal nationalism that was not restricted to merely a given country or region but across the entire world. It aims at providing the basic right to the environment, which further includes a right to safe and clean living conditions. Every individual is entitled to such rights. Furthermore, there is a need to preserve the environment and natural resources for future generations so that they do not suffer. Hence, the term ‘nationalism’ nowadays is not only restricted to any given nation but applies to the whole world at once.

Certain countries in the world have flexible and generous citizenship rules, such as France, whereas Germany still gives a lot more importance to the person’s ethnicity. This clearly reflects the difference between liberal nationalism and ethnic nationalism. On the other hand, France still has certain provisions which exclude Muslims from any form of social participation and which provide a subordinate role for Muslims in society. 

As a result, liberal nationalism nowadays has become a vital factor in bringing together people all over the world to combat global challenges. It can eventually help create awareness of global issues by helping them transcend all borders. 

Causes for the growth of liberal nationalism in India

The growth of liberal nationalism in India dates back to the freedom struggle that took place at the beginning of the 20th century. There were several factors that led to the growth of liberal nationalism in India, which will be explained.

Rise of a new middle class

Like in Europe in the 19th Century, there was a new educated middle class that was growing in India at the beginning of the 20th Century. They were demanding equal rights for all in the country and eventually played a vital role in helping India achieve independence from British rule. This middle class comprised a significant portion of the Indian population, which was concerned with putting British rule to an end.

Growth of press 

The growth of the press and print media played a vital role in conveying the idea of liberal nationalism among the people. It eventually became a tool to criticize British rule and spread the word of unity among the Indians. The British used strict measures for censorship of the content published by Indians to suppress the freedom struggle, but by the 20th century, there were so many Indian periodicals that it became very tough to restrict all. Some of the prominent periodicals at that point were Hindustan Dainik (started by Madan Mohan Malviya), Young India (MK Gandhi), etc.

Growth in vernacular literature

Mahatma Gandhi was very much in favor of mother tongues or vernacular languages becoming the medium of instruction in schools and the language for communication. He believed that this would help in bringing the people together and would create a sense of belonging among them for their nation. There was a huge amount of literature being written in vernacular or regional languages at that point, which at first helped in making all people understand the idea of liberal nationalism and, secondly, gave respect to the cultures and languages of different communities. Even today, there is abundant vernacular literature that is published across the country, such as Bartaman (Bengali), Dhanam (Malayalam), and several others.

National movements outside India

At the time of the freedom struggle, there were several other movements that were taking place outside of India. The prime example of this was the Ghadar Movement in the United States of America. The Sikh ex-pats had formed the Ghadar party to gather support for the Indian National Movements at the global level. This further encouraged the people within the country to fight for their independence. Hence, it was one of the very important factors that led to a growth in liberal nationalism among Indians.

Western education

Though western education was imparted to only a few Indians by the British, they learned about the democratic ideals and principles laid down by the learned thinkers. They further communicated these principles to their fellow Indians for strengthening their support for the freedom struggle. They came to know that they, as human beings, had certain rights which they were being deprived of by the British. Hence, they realized the need to gain independence and live their lives with complete freedom.

Development of new means of transportation and communication

There was a massive development in the means of transportation along with communication, such as postage, during British rule. After independence, the use of telephones became very common. All these facilities helped in spreading the word of liberal nationalism among the people easily and within a very short period of time, which was the need of the hour. People could easily travel from one place to another to participate in the demonstrations and rallies that took place to make themselves aware of the developments taking place. Its current contribution to the growth of liberal nationalism in India hence can’t be under-estimated. 

Socio-religious reforms

There was a unification of the people in the country with the help of the introduction of socio-religious reforms by Raja Rammohan Roy, Vivekananda, and Sir Sayyid Ahmed Khan towards ensuring equality, the abolition of Sati, and providing individual liberty to all. These helped in developing the idea of liberal nationalism among the people and evoked a newfound spirit of belongingness among them.

These have been the major reasons for the growth of liberal nationalism in India and also increased awareness among the people. Most of these factors came up during British rule, as this theory was put to use for the first time by the literate middle class during that time. 

Constitutional provisions promoting liberal nationalism

The Constitution of India promotes liberal nationalism among the people by providing them with freedom in all aspects and ensuring their equality in society. The people of India also have the right to freely voice their opinions and to express their grievances. There are a large number of constitutional provisions which promote liberal nationalism.

Article 14

Article 14 of the Indian Constitution talks about the Rule of Law. It essentially means each and every individual is to be treated equally in the eyes of the law. This is the very purpose of liberal nationalism, in which all people, irrespective of their ethnicity, must be respected. 

Article 15

Article 15 states that there shall be no discrimination against any person on the grounds of caste, gender, sex, religion, etc. It further aims to promote equality among all and heal the wounds created by the caste system in the past. 

Article 19(1)(a)

Article 19(1)(a) is one of the most important articles for promoting liberal nationalism in the country. It states that each and every person has the right to freely express their opinion, within some reasonable restrictions such as national security, sovereignty, or foreign relations. The people, by voicing their opinions, can hold the government accountable for its actions. This is an essential element for any democracy to survive.

In the case of Disha A Ravi v State of NCT of Delhi (2021), the Court clearly held that the right to Freedom of Speech and Expression also constitutes the Right to Disagree, Dissent, and also to gather International Support for any given cause. The Right to Speech has to be on the highest pedestal in any democracy. The government can’t misuse its powers and charge any person for sedition or any other offense to just administer its wounded vanity. Unless the criticism made by the individual doesn’t incite any violence or hatred towards the government, regardless of the speech, it can’t be suppressed by the government. 

Article 21

Article 21 of the Constitution mentions the right to life and personal liberty, which are provided to all the people in the country. Every individual has the right to lead a life with dignity and also has the very important right to privacy. 

In the case of Justice KS Puttaswamy v Union of India (2017), the Right to Privacy was held to be a fundamental right that can’t be violated under any given circumstances. Further, the fundamental rights under Articles 14, 19, and 21 of the Constitution of India are known as the “golden triangle.” It means that violation of any one of these rights would automatically violate the other two rights as well. 

These are some of the constitutional provisions that aim to directly support liberal nationalism in India. The aim is to create a sense of belongingness among the people by providing them with basic human rights and preventing them from exploitation.

Limitations of liberal nationalism

Liberal nationalism has several benefits and has proven to be vital in the nation-building process, especially in India. Yet, at the same time, it has certain drawbacks which can’t certainly be ignored. These limitations act as hindrances to its universal use. 

Complicated unification

The unification of all communities in a country is a fairly complicated task. Equality and freedom for the disadvantaged sections of society might not be acceptable to the upper class as it would mean sacrificing the privileges they have. This might further lead to conflicts between the upper class and the poor, thereby directly hampering the process of unification and nation-building.

Problem of Regionalism

There was significant use of vernacular languages to promote liberal nationalism and shun the use of English in all its forms. However, its ill effect could be growing ‘regionalism’. The people having the language might discriminate against those who have another native language by developing the belief that their language is much superior to all the other languages. It would lead to increased unification among the people who have the same mother tongue, but in the long run, it is the overall unification among the people belonging to different castes, regions, etc. that is necessary to promote liberal nationalism. 

Lack of social solidarity

Liberal nationalism has a major focus on protecting the rights of refugees by allowing them to immigrate to their countries. However, the increase in immigration could further worsen the process of social solidarity as different communities might develop. Conflicts between them might rise as the migrant community might not be easily accepted by the others in society.

No limits on personal freedom

Liberal nationalism calls for personal freedom for all. However, it doesn’t lay down the extent to which it should be practiced. This might create some problems because the freedom of one might cause distress to the other. Uncontrolled freedom and autonomy are also not good for any nation. This could also lead to conflicts. Hence, this non-fixation of the limit to which a person should exercise his/her freedom could be extremely harmful for any nation. 

Lack of state control

Liberal nationalism focuses to a large extent on the abolition of all trade barriers and state control. This is also one of the key features of ‘liberalism’. However, completely preventing the state from controlling the market could defeat the welfare purpose of liberal nationalism itself. The resources would be allocated according to the market forces, and the poorer sections wouldn’t be able to improve their conditions. Secondly, if the market crashes, all the people would have to suffer its adverse consequences, and they might be deprived of their basic rights.

These are some of the major limitations of liberal nationalism that have led to a reduction in its usage among countries in current times.

Critical analysis of liberal nationalism

Liberal nationalism is a theory that has had negative as well as positive impacts on several countries. 

Case for liberal nationalism

On the one hand, it focuses on the vision of equality for all, but on the other hand, it might lead to conflicts between the different communities as the rights are provided to the minority at the cost of the privileges of the majority community. Though it is justified, the majority community can certainly be offended.

In India, this form of nationalism played a vital role at the time of the freedom struggle. There were several causes that led to the growth of liberal nationalism, which helped in bringing together the people from all over the country and unifying them. 

Case against liberal nationalism

More often than not, this theory has been criticized by the native ethnic groups as it focuses on the inclusion of migrant communities, which would imply giving up certain privileges. Further, this theory doesn’t provide any mechanism through which these conflicts could be addressed. 

Even in India, where Liberal Nationalism has had a positive impact, it has sometimes also led to increased instances of regionalism. This might lead to the demand for separate statehood, as in the case of the division of Andhra Pradesh from Tamil Nadu in 1956, or regional autonomy for several areas, leading to a rise in the regional parties. 

Hence, the objective of liberal nationalism is certainly very positive as it aims to ensure equality for all, but at the same time, it’s easier said than done. In the process, conflicts might arise, and instead of unification among the people, the region or the country might even break apart. Hence, this theory has both its pros and cons, both of which should be considered.

Conclusion

The ideals of democracy, liberty, equality, and freedom/ autonomy as proposed under liberal nationalism are still as important to people as they were in previous times. The aspect that has changed so far is that now it’s no longer only restricted to Europe, where it had come into existence. On the other hand, it can also have certain negative impacts, which should also be considered. Hence, it can be concluded that there is a need to bring about some changes in this theory so that the state can fulfill its objective of ensuring the inclusion of all the people in society. This would further ensure equal rights for all to achieve an amicable environment for all in the region. Liberal nationalism will only then achieve its purpose.

Frequently Asked Questions (FAQs)

1. Where did the theory of liberal nationalism develop?

The theory of liberal nationalism developed in Europe around the 18th century when Jean Jacques Rousseau, John Locke, and other thinkers criticized the monarchy system being followed at that point in time.

2. How is liberal nationalism different from ethnic nationalism?

The difference between both is that while liberal nationalism focuses on providing equal rights and freedoms to all regardless of their caste, creed, or religion, ethnic nationalism focuses only on giving these rights to the majority community or ethnicity. 

3. How did liberal nationalism grow in India?

Liberal nationalism was used in India to unify the people at the time of the freedom struggle. The word of liberal nationalism spread among the people by using vernacular languages for communication, through the growth of the press and print media, and also by providing them with Western education.

References

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

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

https://t.me/lawyerscommunity

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

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Private International Law

By
Rachit Garg
-
0

The article is written by Tejaswini Kaushal, a student at Dr. Ram Manohar Lohiya National Law University, Lucknow. This article deals extensively with the concept of Private International Law, as well as its origin, scope, significance, and Indian applicability.

It has been published by Rachit Garg.

Table of Contents

Introduction 

When there are issues between the local laws of various nations pertaining to private transactions, private international law will be applied. This concept is also called the ‘conflict of laws’. This indicates a dispute or transaction involving one of the following: the relevant jurisdiction, the appropriate court, the appropriate venue, the appropriate renvoi (transfer of proceedings), the appropriate law, or the recognition or execution of a foreign decision.

Private international law mostly derives from national laws. Each country has its own laws, and the application of private international law differs from one jurisdiction to the next. The phrase conflict of laws is more often used in the US, Canada, and the UK. A wide range of subjects is covered by private international law, including (international) contracts, torts (lex loci delicti), family issues, the recognition of judgements, child adoption and kidnapping, real property (lex rei sitae), and intellectual property. The International Institute for the Unification of Private Law (UNIDROIT) and the Hague Conference on Private International Law (HCCH) have brought in treaties, model laws, and other tools to control the domain of transnational conflicts in addition to the regulations established by national authorities. Both the number of members and the variety of state parties to the Hague Conventions have seen tremendous expansion.

At the national, regional, and international levels, private international law-making has exploded as a result of globalisation. It has significantly boosted the actions of judges and lawmakers alike in the field of private international law.

Concept of Private International Law

Conflict of laws

The collection of regulations or laws that jurisdiction applies to a case, transaction, or other occurrences that have ties to more than one jurisdiction is known as ‘private international law’. According to the 10th edition of Black’s Law Dictionary, it is also called the ‘conflict of laws’.  This body of law addresses three major issues: 

  1. Choice of law, which addresses the issue of which substantive laws will be applied in such a case; 
  2. Foreign judgments, which deal with the rules by which a court in one jurisdiction requires adherence to a ruling of a court in another; and 
  3. Jurisdiction, which addresses when it is appropriate for a court to hear such a case. These problems can occur in any private law setting, but contract law and tort law are where they frequently occur.

Private International Law

The principles of private law and international law have been combined to form private international law. By engaging in any type of legal relationship, persons or states acting in the role of individuals freely invoke private law. The law that develops between several national (or municipal) legal systems is known as international law.

As Cheshire expressed, “Private international law, then, is that part of the law which comes into play when the issue before the courts affects some facts, events or transaction that is so closely connected with a foreign system of law as to necessitate recourse to that system.”

The existence of several distinct municipal legal systems across the world is what gave rise to private international law. National legal systems reflect variations in sociocultural values, history, and tradition. The common law system in the United States is distinguished by a significant focus on court decisions as a separate source of law. Canada considers this common law system to be bi-jural since it integrates with Quebec’s civil law system.

Foreign law or facts, factual circumstances, substance, components of a legal cause of action, or fact patterns, which in one way or another are connected to a foreign legal system or a foreign nation, may be considered a foreign element. Foreign law is when a court decides a matter using a system of law that is distinct from the system of law that the court would use in a strictly domestic case.

There is an odd juxtaposition in private international law. Despite the word ‘international’ being a part of its title, only the foreign component qualifies as international. Even though it includes a global component, private international law is mostly a subset of municipal law. Every nation has its own private international law for this reason. Private international law, which is a subset of municipal law, deals with nearly every area of law and has a very broad scope. It does not, however, focus on any one area of law.

History of Private International Law

Development in the 1100s  

A fundamental tenet of conflict of laws, that ‘foreign law, in suitable occasions, should be applied to foreign issues’, was first acknowledged by Western legal systems in the twelfth century. Prior to then, personal law predominated, which meant that each person’s relevant rules were determined by the community to which they belonged. The goal of this corpus of law was initially to simply decide which jurisdiction’s law would be the most equitable to apply. But, as time went on, the law began to prefer more precise principles. 

Development in the 1300s 

Bartolus de Saxoferrato, a law professor, meticulously compiled these laws around the middle of the fourteenth century, and his work was often quoted for the next several centuries.

Development in the 1600s

The jurisprudence of conflict of laws was further developed in the seventeenth century by several Dutch legal academics, including Christian Rodenburg, Paulus Voet, Johannes Voet, and Ulrik Huber. They made two major conceptual advances:

  • Firstly, they argued that because countries are completely sovereign inside their boundaries, they cannot be forced to apply international law in domestic courts. 
  • Secondly, for international conflicts of law to function rationally, states must act with courtesy while upholding the laws of others since doing so is in their shared best interest.

Development in the 1700s

Important questions in the area of conflict of laws have existed in the US at least since the Constitution’s drafting in 1779. For instance, there was uncertainty over the body of law that would be used by the newly established federal courts in instances involving parties from various states (a type of case specifically subject to the jurisdiction of federal courts as per Article III of the US Constitution). Over 100 cases dealt with similar difficulties in the first two decades after the Constitution’s passage, while the phrase “conflict of laws” was not then in use.

Development in the 1800s

The eighteenth century witnessed the beginnings of significant international cooperation on the subject of conflict of laws in addition to domestic advancements in this area. Five South American nations sent representatives to the first international conference on the subject, which was held in Lima in 1887 and 1888 but failed to result in an enforceable agreement. The First South American Congress of private international law, which took place in Montevideo from August 1888 to February 1889, resulted in the first significant multilateral accords on the subject of conflict of laws. Eight treaties were drafted by the seven South American countries involved at the Montevideo conference, which essentially embraced Friedrich Carl von Savigny’s theories and based their determination of applicable law on four different forms of factual connections (domicile, location of object, location of transaction, location of court). 

Development in the 1900s

Soon after, Tobias Asser convened an international conference in the Hague, Netherlands, in 1893. Thereafter, conferences were held in 1894, 1900, and 1904. These conferences, like their counterparts in Montevideo, resulted in several multilateral agreements on numerous themes related to conflict of laws. Subsequently, the frequency of these gatherings decreased, with the following conventions taking place in 1925 and 1928. The sixteen participating governments formed a permanent organisation for international cooperation on conflict-of-laws matters during the seventh conference in The Hague, which took place in 1951. The Hague Conference on Private International Law (HCCH) is the name of the organisation nowadays. By the end of 2020, HCCH had 86 member states.

In the latter part of the 20th century, as interest in the subject grew, the European Union started to take steps to unify conflict of law jurisprudence across its member states. The first of them was the 1968 Brussels Convention, which addressed the issue of jurisdiction for disputes involving multiple countries. The Rome Convention, which addressed choice-of-law guidelines for contract disputes among EU member states, came after this in 1980. 

Development in the 2000s

The EU passed the Rome II Regulation to handle the choice of law in tort cases and the Rome III Regulation to address the choice of law in divorce issues in 2009 and 2010, respectively.

Sources of Private International Law

The domestic laws of the relevant nations regulate a large portion of private international law. This means that Indian law may be used to determine, for instance, whether a particular foreign ruling would be upheld in an Indian court. Treaties and conventions, model laws, legal handbooks, and other instruments may also be utilised in the current endeavour to develop a more unified system of private international law. There is currently no well-defined body of private international law, although particular topics like contracts or family law may have their own set of controlling laws. private international law is often subject-specific and varies from country to country and jurisdiction to jurisdiction.

International bodies and treaties 

The main international organisations engaged in private international law are listed below. Each of the following has a website where they provide updates on their conventions, preserve older papers, and provide information about their current projects:

Conference at the Hague on Private International Law (HCCH)

The Hague Conference on Private International Law (HCCH) is the international organisation for cross-border cooperation and commercial concerns, and it has its roots in a conference called by the Dutch government in 1893. It creates conventions (rather than principles, recommendations, and model laws) in several areas of private law, including subjects like intercountry adoption and child abduction as well as more modern problems like jurisdictional and choice-of-law rules. The Hague Conference’s Statute on Private International Law (entered into force on 15 July 1955) outlines the organisation and goals of the conference.

The whole text, status, bibliographic data, and explanatory reports on the Hague Conference’s work are all available online, including:

The News and Events section on the official website provides the latest information on the status of conventions. The archives on the website go back to 1997. The lists of Central Authorities designated under various conventions are also maintained by the Hague Conference.

United Nations Commission for International Trade Law (UNCITRAL)

The United Nations General Assembly founded the United Nations Commission for International Trade Law (UNCITRAL) in 1966. It is the driving force behind some of the most important work being done to gradually harmonise private international law. The UNCITRAL website includes original materials and details on the status of recognised instruments including

UNCITRAL contributes to the harmonisation of international trade law by developing model laws and legal guides that serve as a resource for domestic legislative drafters, in addition to conventions and other comparable instruments that are adopted at the international level by states. The UNCITRAL Model Law on the Procurement of Goods, Construction, and Services with Guide to Enactment (1994) acts as the most important illustration. Other UNCITRAL initiatives are targeted at private business parties, including the well-known UNCITRAL Arbitration Rules and the UNCITRAL Notes on Organising Arbitral Proceedings.

Six specialist working groups support UNCITRAL’s work. Each Working Group section contains drafts and preparatory documents that reflect the progress towards a finished document. 

  • Working Group I- It has finished working on the following:
  • Working Group II- It is presently concerned with the arena of international arbitration and conciliation. 
  • Working Group III- It is presently concerned with online dispute resolution.
  • Working Group IV- It is presently concerned with the arena of electronic commerce.
  • Working Group V- It is presently concerned with the arena of insolvency law.
  • Working Group VI It is presently concerned with the arena of security interests. 

International Institute for the Unification of Private Law (UNIDROIT) 

Since UNIDROIT’s founding in the League of Nations, the International Institute for the Unification of Private Law (UNIDROIT) has worked to modernise, harmonise, and coordinate private law, particularly commercial law, as between states and groups of states and to formulate uniform legal instruments, principles, and rules to achieve those objectives. The working languages of UNIDROIT, English and French, are both represented on its website, which provides complete text and status details for UNIDROIT Conventions such as the:

• Ottawa Convention on International Financial Leasing, 1988;

• Ottawa Convention on International Factoring, 1988;

• Rome UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, 1995;

• Cape Town Convention on International Interests in Mobile Equipment, 2001; and

• Cape Town Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment, 2001.

EU, CIDIPs, OHADA 

For regional harmonisation, international bodies such as European Union (EU), Inter-American Specialised Conferences on Private International Law (CIDIPs), and Organisation pour l’harmonisation en Afrique du Droit des Affaires (OHADA) function to implement and uphold private international law.

European Union (EU) 

Through the creation of conventions, directives, and regulations, the EU harmonises the private international law of its member countries. The following conventions play a significant role in the functioning of the EU for ensuring regional harmony and efficient functioning of private international law:

  • The Brussels Convention and the Lugano Convention– are intended to define the worldwide jurisdiction of their courts, promote recognition and create an expedited mechanism for ensuring the execution of judgments, genuine documents, and judicial settlements. The Lugano Convention expanded the laws governing jurisdiction and the execution of judgements beyond the borders of the European Union.
  • The Rome Convention– It states that a contract is regulated by the law that the parties have agreed upon and that is evident from the contract’s terms or the specific facts of the case.
  • Study Group on a European Civil Code– The Study Group on a European Civil Code is a network of academics from throughout the EU engaged in comparative legal analysis in the area of private law to produce a defined collection of European legal principles covering the fundamentals of the law of contracts and the law of property.
  • Principles of European Contract Law from the Commission on European Contract Law– The Principles of Contract Law were created by the Lando Commission, also known as the Commission, and are intended to be used as general rules of contract law in the European Communities when the parties have agreed to incorporate them into their contract or to have their contract be governed by them.

Inter-American Specialised Conferences on Private International Law (CIDIPs)

Inter-American Specialised Conferences on Private International Law, also known as CIDIPs, are organised by the Organisation of American States and are instrumental in coordinating and codifying private international law in the Western Hemisphere.

Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA)

In October 1992, OHADA began the legal unification process in Africa with the assistance of the heads of state of the sixteen OHADA nations. The Treaty on the Harmonisation of Business Law in Africa, the first OHADA treaty, was signed in Mauritius in October 1993. Information about the ongoing OHADA projects is shared on its website.

International Tribunals 

International criminal tribunals are either permanent or temporary (ad hoc) courts established to hear cases involving violations of international criminal or civil law. Generally, the national courts are approached to settle the majority of private international law cases but this isn’t an ideal and efficient option for either party. Furthermore, International courts typically handle matters only between nations and not private parties. The United Nations, therefore, assumed the charge of establishing international tribunals for the purpose of prosecuting offenders under private international law. There are a few regional courts and arbitration bodies that occasionally handle claims from private parties. These courts frequently use a mix of the relevant nation’s domestic law and some kind of international law. 

The list below includes a handful of these courts  established in different regions:

Africa

In Africa, OHADA is applicable and functioning which has established the tribunal courts for corporate law issues in its member nations, and has also published a number of model acts aiming to incorporate features of domestic laws to adjudicate matters of private international law.

European Union

In the European Union (EU), the European Court of Justice (ECJ) is the highest court for disputes involving the application of EU Community law, as opposed to the national law of individual member states. Furthermore, the European Union enters into international agreements with other subjects of international law, such as international organisations and nations, as a subject of public international law. With regard to the judgement, interpretation, and application of international treaties to which the EU is a party, the European Court of Justice is uniquely qualified. Additionally, the Court may interpret foreign agreements reached by the EU as acts of the institutions, particularly during the preliminary referral phase.

Council of Europe

In the Council of Europe, the European Human Rights Court (EHRC) has authority.  If a person feels their rights have been violated in accordance with the European Convention on Human Rights, they may file a petition. EHRC acts as the primary judicial forum where people can file complaints about violations of their rights under the Convention. Cases occasionally include family law.

Scope of Private International Law

Although it has gained popularity in the UK, the United States and Canada are where the phrase ‘conflict of laws’ is most frequently used. According to some scholars from nations that apply conflict of laws, the term private international law is unclear since this body of law only includes domestic laws when a country is bound by treaties. It does not include laws that apply internationally (and even then, only to the extent that domestic law renders the treaty obligations enforceable). The distinction between private and public law in civil law regimes is where the phrase ‘private international law’ originates. The phrase ‘private international law’ under this type of legal system does not indicate an established body of international law. Rather, it refers to those parts of domestic private law that deal with international matters.

It’s important to note that although conflicts of laws often deal with international problems, local law is the relevant law. This is because, unlike public international law (more commonly referred to as simply international law), conflict of laws regulates how individual countries internally handle the affairs of people who have connections to multiple jurisdictions rather than how countries relate to one another. Undoubtedly, just like in other situations, international agreements to which a nation is a party may have an impact on domestic law.

Moreover, issues involving conflict of laws frequently arise in wholly domestic contexts, relating to the laws of different states (or provinces, etc.) rather than laws of foreign countries, in federal republics where significant lawmaking occurs at the subnational level, particularly in the United States. 

Need for Private International Law

When it has selected the proper system of law, private international law has served its purpose. Its regulations do not directly resolve the conflict, and a French writer once compared this branch of law to the information desk at a train station where a traveller may find out what platform a train departs from. By definition, private international law only identifies the applicable law to be used in a case’s resolution. The following are the duties of private international law:

  1. What situations will provide the court jurisdiction over cases with foreign elements? (selection of a jurisdiction)
  2. Which law, the local municipal law or foreign law, shall the court apply in making such decisions? 
  3. When will it order the execution of a foreign decree or under what conditions will it recognise a foreign judgement?
  4. Specifically for India, it also involves Indian private international law codification.

In India, there are very few statutory provisions relating to private international law. In this nation, there is no codification of private international law. Instead, it is dispersed among many statutes, including the Civil Procedure Code, the Indian Contract Act, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act, etc. A few norms have also developed as a result of court rulings.

Functions of Private International Law

Private international laws perform the following functions:

  1. Private international law has traditionally been thought of as a set of impartial principles that designate the relevant legal system and create international jurisdiction. Private international law may have a specific advantage because it serves as an impartial arbitrator in international conflicts when the law, culture, and fundamental principles are different. It controls and coordinates matters of the relevant law and jurisdiction in a somewhat formal manner while respecting legal variety.
  2. Private international law aids in establishing the case’s maintainability by indicating which courts have jurisdiction to adjudicate the conflict, i.e. ‘jurisdiction’
  3. Private international law aids in deciding the local or foreign laws to be applied in cases involving private legal relationships and the existence of foreign content, i.e. ‘choice of law’.

Jurisdiction

The assessment of when the legislature of a given jurisdiction may legislate or the court of a given jurisdiction may lawfully adjudicate an issue that has extra-jurisdictional aspects is one of the fundamental questions addressed under the conflict of laws. This issue is ultimately decided by local law, which may or may not take into account pertinent international treaties or other supranational legal notions, as is the case with other elements of conflict of laws. Nevertheless, in contrast to the other two subtopics of conflicts of law, the theory of jurisdiction has given rise to dependable global standards. This is because jurisdiction deals with the most complex issue of whether or not it is ever legitimate for a nation to employ coercive force, as opposed to just how it should. 

In general, international law recognises five grounds of jurisdiction. An individual or an incident may be subject to concurrent jurisdiction in more than one location, they are not mutually exclusive. The following are those five grounds:

  1. Territoriality: A nation has the authority to control anything that takes place inside its borders. The territoriality concept enjoys the broadest support among jurisdictional grounds in international law (subject to various complexities relating to actions that did not occur wholly in one country)
  2. Passive personality: A country has jurisdiction over an event that injured one of its citizens.
  3. Nationality (or active personality): A nation has jurisdiction over a wrong committed by one of its citizens. 
  4. Protective: A nation has the authority to resolve risks to its own security (such as by pursuing counterfeiters of official documents).
  5. Universal: Because a given behaviour is inherently condemned by the world community, a nation has jurisdiction over it (such as violent deprivations of basic human rights). Of the five jurisdictional bases, this is the one that generates the greatest debate.

Laws have also been adopted by nations to resolve jurisdictional conflicts between sub-national organisations. For instance, in the United States, the Due Process Clause of the Fourteenth Amendment governs the minimal contacts rule, which limits the scope to which one state may exercise jurisdiction over residents of other states or events that occurred in other states. 

Choice of law

Courts go through a two-stage process when presented with a choice of law issue:

  • The law of the forum (lex fori) shall be used by the court in all procedural matters, including regulations regarding the choice of law;
  • The laws with the strongest connections, such as the law of nationality (lex patriae) or the law of habitual residence, are applied after taking into account the circumstances that connect or relate the legal concerns to the laws of possibly relevant nations (lex domicilii). 

The civil law counterpart of the common law lex domicilii test is the notion of habitual residency. The plaintiffs’ capacity and legal standing will be established by the court. The court will decide which state’s legislation (known as the lex situs) will be used to resolve all title-related disputes. When the issue is substantive, the ruling law will frequently be the law of the location where the transaction occurs or of the event that gave birth to the dispute (lex loci actus), but the appropriate law has become a more popular option.

The doctrine of comity

According to the legal concept known as the doctrine of comity, unless doing so would be against its public policy, a jurisdiction must recognise and implement court judgments and decisions made in other jurisdictions. The doctrine of comity is primarily utilised in interpreting international treaties, the theoretical frameworks which are developed within the nation, and the insights which can be gained from the analysis of Treaties and Model Law cases have wider implications for the use of comity in other contexts.

Comity, a notion with roots in the Middle Ages, is still relevant today since it aids in achieving one of the law’s main goals: the swift, fair, and complete settlement of disputes. In private international law, comity has long been acknowledged as a basic norm. Courts may nevertheless employ the theory of comity in interpreting international treaties and using their discretion under them, even when private international law standards are enacted in such instruments. With governments’ interdependence constantly increasing in the modern world, this strategy looks even more rational.

Unification of Private International Law

There is a primary need for the unification of private international law for two reasons. The private international law principles that various nations have established are distinct from one another, just as the domestic laws of various nations are. Consequently, the unification of legislation also occurs in two stages:

  1. Unification of internal laws of the countries of the world.
  2. Unification of the rules of private international law.
  3. The Berne Convention of 1886, which established an international alliance for the preservation of authors’ rights over their literary and creative works, was the first step toward the unification of domestic legislation. An international institute for the unification of private law was founded in Rome following World War One. The institute presently enjoys close ties with the United Nations and the Council of Europe.

A crucial step in that direction is the Hague Convention of 1955, which revised the 1929 Warsaw Conventions. This Convention establishes consistent regulations for the air transportation of people and cargo.

The laws governing the transportation of people and commodities by water were unified in the Brussels Convention of 1922-23.

The laws governing the transportation of people and commodities by water were unified in the Brussels Convention of 1922-23. The Geneva Convention on International Road Carriage of Goods of 1956 followed. The Convention on the Uniform Law of Bills of Exchange was the outcome of the Geneva Conference in 1930.

  1. It is impossible to unify all privacy laws due to fundamental ideological differences among the nations of the globe. Therefore, unifying all privacy laws is another way to prevent situations where courts in various nations may reach conflicting conclusions on the same issue.

A permanent Hague Conference Bureau was established in 1951. This was accomplished in accordance with a Charter that many nations have ratified. Many further Charters, Conventions, and International Organisations are attempting to harmonise private international law. International conventions, however, may only be a component of municipal legislation if they have been acknowledged or included in it.

Theories of Private International Law

The five main schools of thought in private international law. These theories include the Statute Theory, International Theory, Territorial Theory, Local Law Theory and Theory of Justice. Each of these theories is further explored, along with how it may be used in real life:

Statute theory

It can be argued that the statute theory is the most traditional theory of private international law. Bartolus invented it in Italy in the 13th century. He is frequently cited as this theory’s founder. In order to reconcile problems between the city states’ laws and the then-existing Italian law, he created the statute theory. Depending on the legal subject, the statutes were separated into two sections called Statuta Personalia and Statuta Realia.

  • Statutes pertaining to individuals (Statuta Personalia): These laws dealt with people and were applicable to those who resided in a certain region. Even when these domiciled individuals travelled to other territories, the laws of that particular area nevertheless applied to them.
  • Statutes pertaining to things (Statuta Realia): These statutes dealt with objects and were primarily territorial in scope.
  • Mixed Statutes (Statuta Mixta): Bartolus added a third category to the statutes, nevertheless. Rather than people or objects, this article dealt with acts. This sub-head would cover things like the creation of contracts or agreements, for instance. These were applicable to all actions taken in the area that passed the relevant legislation, even when litigation over those actions took place in another jurisdiction.

Use of Bartolus’s statute theory 

While the aforementioned statutory idea appears to be clear-cut and uncomplicated in principle. However, when the theory is used in practice, it reveals several real-world issues that do not exist in theory. It is difficult to determine if anything falls under personalia or realia in such a situation. It fits well within the laws dealing with individuals because it includes people and their private affairs. However, it also makes land transferable, making it eligible to be covered by laws pertaining to objects. To solve this issue, Bartolus distinguished between the two based on the linguistic structure of the legislation. If a person is mentioned in the statute’s wording first, it is deemed to come under personalia. If an object is mentioned first, it is said to be under realia.

Criticism of statute theory

The three maxims Ulric Huber, a Dutch jurist, established for the statute theory during the 17th century as the law developed. He believed that these maxims might be used to create an all-encompassing framework for settling legal disputes.

They were as follows:

  • The rules of a State are inviolable, but only inside the boundaries of its sovereign territory.
  • Everyone who enters a sovereign’s realm, whether temporarily or permanently, is considered one of his subjects and is subject to his laws as a result.
  • Due to comity, however, each sovereign acknowledges that a law that has already been implemented in the nation of its origin should continue to be in effect elsewhere, provided that doing so would not harm the subjects of the Sovereign by whom its recognition is sought. 

While the first two maxims i.e. any rule of the nation has absolute authority and that people must abide by it, can be accepted, several academics and legal experts from throughout the world have criticised the last axiom. The Statute Theory lacks a scientific foundation and provides no firm footing upon which a sound and logical system can be built, according to Cheshire & North’s private international law. One can’t expect every country’s legislation to fit him or his means, according to the third maxim. While homosexual marriage is legal in certain nations, it is not in others. The third maxim thus becomes nonsensical and useless.

International theory

Another term for this hypothesis is the Von Savigny theory. The older statute argument was categorically rejected by the German jurist in his work on Conflict of Laws, which was published in 1849. The statute theory, in his opinion, is unfinished and unclear.

Savigny argued for a more scientific approach, stating that the challenge is to identify the local law that, in its natural nature, each legal connection belongs to rather than classifying laws according to their objects. Each legal relationship has a natural seat in a specific local law, and when that law diverges from Forum law, it is that local law that must be followed. In this situation, the seat refers to the location of the object or, in the case of a person, where he is domiciled. This theory’s most notable strength is its attempt to resolve each disagreement in light of its unique circumstances and the most pertinent body of law. It encourages adherence to the rules of the legal system of which the parties or items in question are logically a part.

Application of international theory

Savigny has outlined the four main factors that influence the natural seat. Which are:

  • The place of residence of a party to a legal relationship.
  • The location of an item that is the subject of a legal relationship.
  • The location where a legal act is performed.
  • The location of a Tribunal.

It is only normal for there to be some kind of contractual arrangement between the parties engaged in every legal connection. Therefore, a legal remedy must be sought if any party to such an agreement should suffer legal injustice.

When determining the domicile of a person who is subject to a legal relationship, one should place more emphasis on the residence of the parties to the contract, the location of the contract’s performance, the location of the breach, and the location of the court i.e. the place where the dispute will be resolved. The lex situs controls the contract if real property is the issue of the dispute, even if it differs from the domicile of either party or both parties.

Criticism of the international theory

The fundamental argument against this idea was that Savigny presupposed that the laws of all nations were uniform. This hypothesis is less trustworthy since there isn’t as much homogeneity in the real world. This is the case because it will be challenging to identify the natural seat of the legal relationship in the absence of such consistency. For instance, a breach of a marriage contract may fall under contract law in certain nations while being regarded as a tort in others. It might be difficult to determine the natural seat of the continuing legal relationship in such circumstances.

This approach also ignores the common law system and the influences of ethnicity, religion, and culture on the laws of other nations. India, for instance, is a nation rich in ethnic and cultural characteristics. Therefore, a country with such a diverse population has laws that vary greatly from region to region and even from village to village.

Territorial theory 

The territorial theory, also called the theory of acquired rights, was established when Dutch jurist Huber first proposed it in the 17th century since it is based on the idea of territoriality. Common attorneys like Dicey and Beale in England and the United States, respectively, developed it later.

In the simplest terms possible, the argument is that the courts of sovereign nations do not implement foreign law but only acknowledge the effects of foreign law’s operation. This implies that national courts only implement foreign law to the degree that the sovereign has given them permission to do so.

Application of territorial theory

In essence, it implies that a judge is not permitted to arbitrarily apply any foreign law or ruling to any matter he is adjudicating. In all circumstances that call for his judgement, he must fundamentally apply the law of his country.

The Acquired Rights or Territorial Theory seeks to balance the necessity for private international law with the territoriality of the law. Sir William Scott used it in the case of Dalrymple v. Dalrymple (1902). The Hon. Sir William stated that he was to take into account Miss Gordon’s overseas rights, regardless of whence they originated. The idea, in particular, does not permit any court to consider any law other than the fundamental law of the nation.

The argument makes sense when seen from the perspective that no stranger is permitted to enter your home and rule or direct you. An analogy that illustrates this point is when a visitor to Mr X’s home instructs Mr X on how to conduct himself. The principle prevents foreign laws from dictating how Mr X should behave or conduct himself within his own country. It shows respect for the nations where laws are being sought to be implemented, and since it is the judge’s own nation, it is legitimate for him or her to exercise that privilege there.

Criticism of the territorial theory

Dr Cheshire has harshly criticised this specific notion, calling it “unnecessary,” “untrue,” and “unhelpful.” Currently, it also doesn’t receive much support that’s noteworthy. Even though different countries’ laws tend to be distinct from one another, it becomes very difficult to compare them. Many nations, like Nigeria, where the British formerly held sway for a very long time, still adhere to English law, making their legal system compatible with the British. However, this is not feasible in every other country. Foreign rulings and their application constitute a component of the legal system and cannot be disregarded.

The territorial theory effectively contradicts the goal of private international law as a field of study because if it were feasible to resolve every dispute using solely territorial law, then this discussion would not be necessary. However, it is generally known that territorial law does not always suffice to resolve legal disputes.

Local law theory

The territorial idea has been expanded into the Local Law theory, which was put out by Walter Wheeler Cook. Cook emphasised that governing laws should not be developed from the logical arguments of philosophers or lawyers, but rather by looking at prior court rulings. In essence, he emphasised the value of precedents. Cook asserts that each court must effectively create its own set of laws based on earlier rulings. Contrary to territorial theory, it considers the laws of the relevant foreign nation out of social need and practical convenience.

Application of local law theory

The local law states that there is absolutely no reason for any court to reverse a decision made based on local law just because there is a difference with foreign law. Even though the etymologies of all the overlapping rules are not the same, they are all somewhat cohesive in their interpretation and application, and this cannot be denied. Because a nation’s law serves as its ultimate compass, relying on precedents might be considered a legitimate basis for enforcing the law.

Criticism of local law theory

This local law theory, in the opinion of Cheshire, North, and Fawcett, does not provide a foundation for the system of private international law. Because it is a technical dispute that neither clarifies nor resolves anything to tell an English judge who is going to consider a matter with a foreign element that whatever conclusion he makes, he must impose only the law of the Forum. It offers absolutely no guidance about the parameters in which he must take the foreign law into account. However, while precedents can be a useful tool for resolving disputes, they shouldn’t be the primary consideration for making judgments in the future. If a precedent is impeding justice and not living up to its full potential, it should not be enforced any longer. A court should also be prepared to overturn precedent if it later determines that it was the cause of an injustice.

The law must adapt in order to keep up with human evolution. Therefore, it is impossible for any legislation to always be true if it is based just on prior cases. The ability of higher courts to overturn prior rulings from lower courts is a prime illustration of this. In several cases, courts have overturned earlier rulings in light of new information and logical concerns that have emerged as time has passed.

Theory of Justice

As Dr Graveson, the founder of the theory of justice once expressed, “One of English legislative and judicial justice, based on what English statutes say and what English judges do in cases to which the conflict of law applies. It is thus both pragmatic and ethical.”  Dr Graveson created the theory of justice intending to provide genuine justice as its only tenet. Ideally, according to Dr Graveson, his theory shouldn’t be applied as a rigid rule in every situation. Rather, his major goal is to administer pure justice while taking previous decisions, morality, and equality into consideration. Graveson acknowledges that his hypothesis is not flawless because there are numerous situations that are impossible to describe using absolutes, and because empirically formed rules in this area of law, like those in other areas of the law, can occasionally result in very difficult specific cases. It leads to the key conclusion that no one theory can adequately address the issue of what constitutes the theoretical underpinnings of private international law.

The main problem in this theory is that one must apply the laws of at least one foreign country, but none is willing to concede to such laws. Giving down to foreign laws and enforcing them when resolving disputes merely amounts to one sovereign losing his sovereignty in front of another.

Cheshire and others point out that such a subjection of one’s sovereignty occurs by free will and is not the result of coercion. However, one has no option when it comes to matters of private international law. Because it includes the interests of many parties who are at odds with one another, it is known as ‘private international law’. Therefore, it is imperative that some kind of foreign law be used to address such conflict of interest matters.

Private International Law in India

In India, private international law is applicable and is particularly pertinent in marriage cases. In situations where private international law is relevant, the party must first accept the Indian court’s jurisdiction. Hence, the jurisdiction is decided upon with the aid of some personal jurisprudence rules, which serve as the linking principles that assist the courts in deciding which law should be used to determine the case’s merits. The foreign party must next go to the court that has jurisdiction, i.e., accept that court’s selection. The foreign court must accept the decision after it has been made before it may be implemented in the foreign state. Every nation has its own norms and laws regarding the recognition and execution of foreign decrees and directives. Hence, the principles of English private law are similar to the personal law regulations in India.

Indian Private law and marital issues

After India gained independence in 1947, laws governing foreign marriages were first debated in August of that year. Therefore, the desire to pass such laws was made in the 23rd Report by the Law Commission of India. Though the Special Marriage Act of 1954 was up for debate in Parliament, it was suggested that it should also apply to unions performed outside of India even when all of the persons involved were Indian citizens.

On February 23, 1959, the Rajasthan Court heard the case of Christopher Andrew Neelakantan vs. Mrs Anne Neelakantan. According to a Judgement made by Justice Modi, a person residing in India who marries an English lady in England (probably in accordance with national law) is eligible for a divorce under the Special Marriage Act of 1954, which establishes the legal divorce process in India. As was made obvious in the Judgement of the case that was exactly cited above by the Rajasthan panel, equity considers the intent rather than the form.

The primary goal of the law is to provide relief or redress to the party who has been wronged, and if there is a technicality that prevents granting that party remedy, the law is sometimes referred to as being useless or aimless.

Issues with the applicability of Private International Law in India

Government neglects the nation’s smallest unit i.e. a family, and if it continues due to the aforementioned problems, it will halt the country’s development. Consequently, there may be anomalies in the couples’ addresses, a multiplicity of their IDs, and the precise location of their dwellings may be undiscoverable. Disputations impose strain on the transportation system as well as the legal system. Even today, lawmakers don’t seem to be promoting equality for both spouses, and the legislation isn’t developed enough to address their problems. Foreigners come to India for their weddings and then depart from the Indian state. In such cases, a woman may get cheated on moving abroad or an innocent husband may get extorted similarly. The court must provide legal support to such victims yet the law typically does not give such a scenario enough emphasis due to conflict in the validity of laws functioning trans-nationally. 

Marriage validity on an international level

There should be legislation to ensure that weddings performed there have a high level of international legitimacy. This might be accomplished by giving the wedding officer the authority to decline to solemnise a wedding that, in his opinion, violates the law. The passport office and any other agencies that need it, including those where the foreign national dwells/has citizenship of or is domiciled, must be notified about the wedding. According to the premise of this citation, once a marriage is declared legal, it stays such until it is dissolved by the parties’ mutual agreement or, if the parties believe that they are at fault, by bringing a lawsuit in the jurisdiction where the party who was wronged lives. The law of the land protects the party who chooses to leave India for a foreign country because they value it more highly, and the alternate spouse continues living his or her life normally because the first marriage had no legal standing. This is why marriages solemnised in India must possess international validity to address the issues of this nature that Indians currently face.

Provisions for the reciprocal recognition of marriage

When a foreigner or NRI travels to India and marries an Indian, they are considered to have succumbed to Indian law. In India, if a dishonest or malicious individual breaks the law, others will suffer the consequences. Therefore, the law is uniform in many areas, including Intellectual Property Rights (IPR), Alternate dispute Resolution (ADR), and cyber legislation. Every nation is expected to maintain diplomatic relations and recognise weddings that are held abroad.

Research strategy for issues surrounding Private International Law

Private international law is that area of law that determines how disputes involving nationals of various nations are resolved. When looking into a private international law issue, one will often be asking one or more of the following three questions:

  1. Which court should have jurisdiction to resolve the conflict?
  2. Which legislation should be used?
  3. How should a foreign ruling be put into effect?

The following stages are beneficial when looking into a private international law issue:

  1. To start, ascertain if the jurisdictions in issue have a conflict of laws policies by looking at each one separately.
  2. Determine if the subject of the dispute is covered by a treaty or convention.
  3. Use supplementary sources.
  4. Examine the laws of other countries and jurisdictions.

Difference between Private International Law and Public International Law

  1. The body of laws known as public international law governs interactions between sovereign states and other international personalities.  On the other hand, private international law governs interactions between Natural or Legal Persons from two separate States.
  2. International conventions and treaties result in public international law regulations. On the other hand, State legislation establishes the norms governing private international law.
  3. International pressure and fear, such as the severing of diplomatic ties and the imposition of sanctions, are used to enforce public international law. On the other hand,  the relevant State executive is in charge of enforcing private international law.
  4. Public International Law does not have an established court. On the other hand, private international law courts have predetermined rules.
  5. For all States, Public International Law is the same. On the other hand, state law and private international law are distinct.

Conclusion

The corpus of treaties, model laws, national laws, legal manuals, and other texts and instruments, known as private international law, governs private interactions that traverse international borders. The dualistic nature of private international law seeks to strike a balance between international consensus and domestic acceptance and application, as well as between government and private sector activity. Private international law is a broad and nebulous area of law that is difficult to define in a way that fully and correctly supports how the law is applied when it conflicts with the law of another country. For judicial policymakers, conflict of laws has developed into a veritable play area. The courts are burdened with a complex and unwieldy corpus of conflicting laws that complicate the judicial process and cause confusion, ambiguity, and inconsistency.

In the modern world, nations must work together since they are so interconnected. The fact that there is now so much global interaction between individuals that it is impossible to turn back the time. In other words, private international law was born out of a worldwide social need, and as long as this need persists, private international law will continue to exist.

Frequently Asked Questions (FAQs)

What is meant by private international law?

The corpus of treaties, model laws, national laws, legal manuals, and other texts and instruments, which govern private interactions that traverse international borders, is called ‘private international law’.

What are important international bodies regulating private international law?

The Hague Conference on Private International Law (HCCH), United Nations Commission for International Trade Law (UNCITRAL), International Institute for the Unification of Private Law (UNIDROIT), European Union (EU), Inter-American Specialised Conferences on Private International Law (CIDIPs) and Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA) are some international bodies functioning to govern and uphold private international law.

What is the source of private international law?

The domestic laws of the relevant nations regulate a large portion of private international law. Further, treaties and conventions, model laws, legal handbooks, and other instruments may also be utilised in the current endeavour to develop a more unified system of private international law. 

What are the various theories of private international law?

The five main schools of thought in private international law. These theories include the Statute Theory, International Theory, Territorial Theory, Local Law Theory and Theory of Justice.

How is private international law applicable in India?

Foreign judgements and statutes are given importance by the Indian judiciary. For instance, in the cases of marriage, marriages performed under foreign law are valid in India and vice versa.

References

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

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Celebrity rights under IPR

By
Sneha Mahawar
-
0

This article is written by Girija Ambaskar, a 3rd-year student at MKES COLLEGE OF LAW, Mumbai and is also enrolled in Diploma in Media and Entertainment course by Lawsikho. This article has been edited by Ojuswi (Associate, Lawsikho). 

This article has been published by Sneha Mahawar.

Introduction

Who is a celebrity? What are the essential ingredients needed to make a case concerning Celebrity Rights?

A Single Judge Bench (Manmohan Singh, J.) of the High Court of Delhi answered these questions in the case of Titan Industries Ltd. v. Ramkumar Jewellers [2012 (50) PTC 486 (Del)],]. It observed that “…a celebrity is defined as a famous or a well-known person. A “celebrity” is merely a person who ‘many’ people talk about or know about.” Therefore, the basic ingredients of it are ‘validity’ and ‘identifiability’ which need to be established to make a case for infringement of Celebrity Rights.

A celebrity is a famous person. In today’s world, any author, actor, model, athlete, musician, politician, or anyone who captures the public eye is a celebrity. They are determined as celebrities by the audience or public, as perceived and viewed by the public. They have a huge following and they influence a lot of people through their profession and in other ways as well. 

Celebrity Rights are not contained or mentioned in any separate law and hence are not statutory rights per se. They are entitled to different rights as individuals and as famous personalities. Application and jurisdiction over these rights are enforced by existing laws which contain a bundle of rights. Passing-Off is a term for someone intentionally or unintentionally representing somebody else’s trademark or brand, by offering goods or services to the public.  Rights available to them include- Personality Rights, Privacy Rights, Reproduction and Distribution Rights, Character Rights, Rental Rights, Performance Rights, Lending Rights and so on. A celebrity’s interest can be protected under the umbrella of Trademark Law and Copyright Law. The Right to Publicity can be found in statutes like– The Trademarks Act 1999, The Copyright Act 1957, and the Right to Privacy has become a fundamental right in India.

This article will be focusing on Trademark and Copyright Laws, along with Personality Rights, the Right to Publicity and the Right to Privacy for celebrities.

Trademark laws

The definition of mark includes names, initials, signatures, sounds, etc. Trademark Laws in India protect film titles as well as characters and names. All these aspects belonging to an individual signify a source can thus be protected as Trademarks, and commercial exploitation can be regulated. Sometimes celebrities, either by themselves or collaborating with a brand, come up with their own “lines” or brands. That brand might contain its name, the name the celebrities assign to it, or an artistic logo. For example, Sachin Tendulkar registered his name as a Trademark in India and Usain Bolt has also trademarked his “pose”.

In the case of Sourav Ganguly vs Tata Tea Limited, Sourav Ganguly, the famous Indian Cricketer, after scoring hundreds in Lords, was troubled to learn after returning that Tata Tea Ltd had included postcards in their tea packets for an opportunity to congratulate him via those postcards, obviously without the approval or consent from Sourav Ganguly. The tea gained popularity. The court ruled in Sourav Ganguly’s favour as his reputation and popularity were a part of his Intellectual Property.

Copyright laws 

Copyright means only the original creators of any literary, dramatic, or artistic work would be the original owners and are exclusively authorised to use it and gain profit obtained from their work, celebrities can demand to ask for compensation if a photographer makes use of their image or sells it to any third party. The Indian Copyright Act doesn’t contain any definition or concept of “Celebrity”. However, the definition of a “Performer” is given in Section 2 (qq)(2) in the Indian Copyright Act. These performers who could be considered celebrities have some rights associated with them. Copyright Law also protects any celebrity author’s books even if it isn’t original.

In the case of Sonu Nigam v Amrik Singh (alias Mika Singh) & Anr.[372/2013(Bombay High Court)] both popular singers of this era were obliged to attend a radio event and were clicked for posters with their permission. Though, Mika Singh used posters that weren’t official, to promote himself. The posters contained bigger images of him amongst other stars, including Sonu Nigam. Pictures of Sonu Nigam were diminished in size. The Bombay High Court restrained the defendants from using those posters/posters and ordered them to pay Rs. 10 Lakhs for damages for charities as approved by the parties. It was argued and ultimately concluded that the hoardings and posters gave the audience/public an unjustified perception of Mika Singh’s popularity in comparison to other dignified and deserving artists.

insolvency

Personality rights 

Personality includes one’s signature, image, likeness, voice, and other traits of one’s own identity. Personality Rights are the main component of any celebrity, as one has to be a celebrity to have these rights, and that is why Personality rights are sometimes also called Celebrity Rights. These rights mostly apply to celebrities or well-known public figures so that their identity cannot be misused or misappropriated. Publicity Rights, which is an aspect of Personality Rights, are image rights. It lays forth the commercial value of a photograph or any representation of that person whose fame and reputation might be misused by another. This right stems from the Right to Privacy and vest only in individuals who are famous, in other words, who are celebrities, who are capable of being commercially exploited by the use of their goodwill and reputation. Any kind of unauthorised commercial exploitation of celebrities shall be in violation of their personality right, as the fame and reputation they have gained are with their own hard work.

Right to publicity

The right to publicity is the right to control the commercial use of the celebrity’s identity. The right of publicity has evolved from the right of privacy and can be inherent only in an individual or an individual’s personality like his signature, voice, personality trait, etc. Publicity Right is purported towards providing an economic incentive for an individual’s right to control the commercial exploitation of his/her identity. 

Aspects of an individual’s persona protected under Publicity Rights:

The Right to Privacy as recognized by the Constitution, allows individuals to give their consent for use of any of their information relating to the individual and their life details, which is not on public record.

Data and details of a person available on public records are ensured to be limited with no false content. The Trademarks Act, 1999 protects one’s name, image, likeness, and exclusive characteristics. Section 14 of the Act prohibits the use of personal names.

The Copyright Act, of 1957, protects one’s literary, artistic, photographic, musical works, and dramatic works. If a claim is brought, which proves that along with the infringement of copyright, it also violates publicity and personality rights, then protection is given for such categories as well.

In the case of Mr Shivaji Rao Gaikwad vs M/S Varsha Productions on 3rd February 2015, the Madras High Court passed an injunction order against the release of a film titled “Main Hoon Rajinikanth”, stating that, it violated the famous actor Rajnikant’s reputation through wrongful use of his name in the title and the movie. Thus, the court held publicity rights by passing this order.

Right to privacy versus IP rights of celebrities

The media considers that it is their fundamental right to capture and publish all the information about celebrities about matters that could be “public interest” or “public concern” which arises out of “Freedom of Press” under Article 19 of the Constitution. This has been challenged by celebrities for interfering with their personal lives and their right to privacy. Every individual has a right to exercise control over his/her own life and image as how it is portrayed to the world. The right to control the commercial use of his/her own identity should vest exclusively with them unless with his/her consent.

Only newsworthy information which would interest the public, and information or pictures captured in a public area that proves that the actor has consented to it, cannot be a violation of their privacy right. 

In a very recent case, Krishna Kishore Singh vs Sarla a Saraogi, Krishna Kishore Singh being the father of Sushant Singh Rajput, the late actor, filed a suit for the protection of his rights of privacy and reputation of his son, in the High Court of Delhi. Krishna Kishore Singh made a statement before the court that any book, movie or series should not be made on his son’s life without his consent. The court dismissed the suit, after reviewing similar relevant cases and precedents, that celebrity rights cannot be granted or recognised without relevance to the actual concept of The Right to Privacy. 

Conclusion

If a celebrity’s right to privacy, right to publicity and personality rights are not protected, their creations, names and likeness would be taken away and misused against them.

Celebrities should make sure that their rights are safeguarded in the following manner:

  • Applying for Trademark registrations for names, signatures, brands, nicknames, and brands. 
  • Obtaining Copyright registrations for performances, literary works, images, videos, sound recordings, etc. to prevent unauthorised use and have control over its distribution, publication, public performance, etc.

These secure them from any financial benefits that infringers might gain from using such property. It might be time for our lawmakers to implement specific laws regarding celebrity rights that will introduce, illustrate and provide protection from misuse of a celebrity’s rights and simultaneously provide privacy to them.

References

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

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

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

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Disaster Management Act, 2005

By
Sneha Mahawar
-
0

This article is written by Pragya Agrahari of Amity Law School, Lucknow. This article provides a detailed analysis of disaster management in India through the Disaster Management Act (DMA), 2005, and its application to various disasters that happened in the country in the past years.

This article has been published by Sneha Mahawar.

Introduction

The geographic profile of India makes it vulnerable to various kinds of natural disasters. Most common of which are floods, tsunamis, cyclones, earthquakes, droughts, etc. According to a UNICEF Report, with 27 out of 29 states and union territories exposed to recurrent natural hazards, India is on the list of the world’s most disaster-prone countries. Moreover, India is also prone to other types of disasters including man-made disasters, biological disasters and other industrial disasters.  

The Disaster Management Act, 2005 was enacted on 23rd December 2005 to handle such disasters in an effective and organised way. This Act establishes the National Disaster Management Authority, which will be the apex body to manage and frame policies related to disaster management. It is headed by the Prime Minister and the Ministry of Home Affairs is the nodal ministry responsible for it. This Act applies to the whole of India. It contains 11 Chapters and 79 Sections. 

Disaster and disaster management in India

According to Section 2(d) of the Disaster Management Act, “disaster means-  

  • a catastrophe, mishap, calamity or grave occurrence in any area, 
  • arising from natural or manmade causes, or by accident or negligence,
  • which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and
  • is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.” 

This means disaster under the purview of the Disaster Management Act includes natural or man-made disasters as well as disasters caused due to accidents or negligence like an industrial or biological disaster.

Disaster Management, under Section 2(e) of the Disaster Management Act means “a process of planning, organising, coordinating, and implementing measures” necessary for – 

  1. Prevention,   
  2. Mitigation or reduction of its risk,
  3. Capacity-building,
  4. Preparedness to deal with the disaster,
  5. Quick response to any threatening disaster,  
  6. Accessing its severity and the magnitude of its effects,
  7. Rescue and relief,  
  8. Rehabilitation.

Objectives of the Disaster Management Act, 2005

The objective of this Act is to provide an effective disaster management system for the whole of India, in case of natural and man-made disasters. For this objective, this Act empowers the Central Government and the state government to establish various authorities at each level to look for such management in the case of disaster. It includes mitigation strategies, capacity-building, relief measures, etc.   

Important provisions under the Disaster Management Act, 2005

This Act establishes various authorities and bodies for the effective management of disasters at all three levels- national, state, and district. It also provides the ‘plan’ for each level.

National level

National Disaster Management Authority (NDMA)

Section 3 of the Act authorises the establishment of the National Disaster Management Authority. It shall consist of the following members-

  1. The Prime Minister of India as a Chairperson of the National Authority, and
  2. Other members not exceeding nine, are to be nominated by the Chairperson. 
  3. One of these nine members nominated the Chairperson to be designated as Vice-Chairperson of the National Authority.   

Section 6 of the Act provides the powers and functions of the National Disaster Management Authority, which are as follows –

  1. Making the policies on disaster management,
  2. Approving the National Plan,
  3. Approving plans by other ministries and departments,
  4. Laying down guidelines for State Authority, ministries and departments, 
  5. Coordinating enforcement and implementation of a plan for disaster management,
  6. To recommend funds for mitigation,
  7. To provide support to other countries affected by such disasters,
  8. To take other measures for prevention, mitigation, preparedness and capacity building for dealing with such disasters,
  9. Making guidelines for the functioning of the National Institute of Disaster Management.

Advisory committee

Under Section 7 of the Act, the National Authority may constitute Advisory Committee to advise or make recommendations on various aspects of disaster management, which may consist of-

  1. Experts in disaster management, and
  2. Persons having practical experience in disaster management at any level- national, state or district.  

National executive committee

Section 8 provides for the constitution of the National Executive Committee by the Central Government to assist the National Authority in discharging its functions. Additionally, the National Executive Committee may constitute one or more sub-communities to discharge its functions smoothly. 

The National Executive Committee may consist of the following members-

  1. The Secretary to the Government of India in the Ministry or department of Central Government, having control over the disaster management as an ex-officio Chairperson,
  2. The Secretaries to the Government of India in the Ministries or departments of  atomic energy, agriculture, defence, drinking water supply, finance, health, power, rural development, environment and forest, science and technology, space, telecommunication, urban development, water resources and the Chief of the Integrated Defence Staff of the Chiefs of Staff Committee, as ex officio members,
  3. Any other officer of the Central or State Government may be invited by the Chairperson. 

Section 10 specifies the powers and functions of the National Executive Committee like-

  1. To act as a coordinating and monitoring body for disaster management,
  2. Preparing the National Plan to be approved by the National Authority,
  3. Monitoring the implementation of the National Policy,
  4. Making guidelines for plans, 
  5. Providing technical assistance to State Governments and authorities for carrying out their functions,
  6. Monitoring the implementation of the National Plan and the plans prepared by other departments and ministries of Central government,  
  7. Evaluating the preparedness of government at all levels,
  8. To organise a specialised training programme for disaster management, 
  9. To require the Government to provide such men and material resources in case of emergency response, rescue and relief, to the National Authority,
  10. To advise, assist and coordinate activities of the concerned authorities, NGOs and others engaged in disaster management,
  11. To promote general education and awareness about disaster management, etc,
  12. To perform such other functions as the National Authority may require it to perform.

National plan

Under Section 11 of the Act, National Executive Committee shall prepare the ‘National Plan’ which should be reviewed and updated manually, and which shall include-

  1. Measures for prevention of disasters,
  2. Measures for integration of mitigation measures in the plans,
  3. Measures for preparedness and capacity-building to fight disaster situations, and
  4. Duties and responsibilities of ministries and departments of the Government of India.

National Institute of Disaster Management (NIDM)

Under Section 42 of the Act, the Central Government shall constitute this institute and prescribe its members, terms of office and vacancies. 

The main functions of this institute are as follows-

  1. Develop training modules and undertake research and documentation,
  2. Formulate and implement a comprehensive development plan,
  3. Assist in the formulation of national policies,
  4. Assist the state governments and state training institutes,
  5. Promote awareness among college students or school teachers,
  6. Organise study courses, conferences, lectures, and seminars within and outside the country, etc.

National Disaster Response Force (NDRF)

Under Section 44 of the Act, the National Disaster Response Force shall be constituted to provide a specialised response at times of threatening disaster situations with the help of trained professionals, which includes medical staff, engineers, technicians, dogs squads, rescuers, etc. NDRF has played a major role in rescuing people in many situations like the Kosi breach in Bihar in 2008, the Kashmir flash floods in 2014, and the Kerala floods in 2018.

State level

State Disaster Management Authority (SDMA)

Section 14 of the Act authorises the establishment of the State Disaster Management Authority. It will consist of the members as follows-

  1. The Chief Minister of the State or the Lieutenant Governor of the Union Territories as an ex-officio Chairperson of the State Authority,
  2. Other members not exceeding eight to be nominated by the Chairperson of the State Authority,
  3. One of these nominated members to be designated as Vice-Chairperson of the State Authority,
  4. The Chairperson of the State Executive Committee is the Chief Executive Officer of the State Authority. 

In the case of Union Territories having a Legislative Assembly except for Delhi, the Chief Minister will be the Chairperson of the State Authority. In the case of Delhi, the Lieutenant Governor shall be the Chairperson and the Chief Minister will be the Vice-Chairperson of the State Authority.    

Section 18 of the Act specifies the powers and functions of the State Disaster Management Authority like –

  1. Laying down the state policy on disaster management,
  2. Approving the state plan, and plans by other departments, 
  3. Laying down guidelines for different departments of state,
  4. Monitoring the implementation of the state plan for disaster management,
  5. Recommending funds for mitigation measures,
  6. Reviewing the developmental plans of different departments of the state,
  7. Review the measures taken for mitigation, capacity building and preparedness by the departments of the state and issue necessary guidelines. 

Advisory committee

Under Section 17 of the Act, the State Authority may constitute an advisory committee to make recommendations on disaster management which shall consist of experts in disaster management having practical experience.

State executive committee

Section 20 constitutes the State Executive Committee by the State Government to assist the State Authority in discharging its functions. Additionally, the State Executive Committee may constitute one or more sub-communities to discharge its functions smoothly. 

The State Executive Committee may consist of the following members-

  1. The Chief Secretary to the State Government as an ex-officio Chairperson,
  2. The four Secretaries to the State Government of such departments which it thinks fit,   

Section 22 specifies the powers and functions of the State Executive Committee like-

  1. Monitoring the implementation of the National and state plan,
  2. Testing the vulnerability of different parts of the state to different forms of disasters, 
  3. Laying down guidelines for preparing plans,
  4. Providing technical assistance for carrying out their functions,
  5. Coordinating the implementation of the plans and guidelines,  
  6. Evaluating the preparedness at both governmental and non-governmental levels, 
  7. Arranging response in the event of any threatening disaster situation, 
  8. Assisting and coordinating activities of the concerned authorities, NGOs and others engaged in disaster management,
  9. Promoting general education, awareness and community training about disaster management, and
  10. Advising the state government regarding financial matters,
  11. Ensuring communication systems are in order, etc. 

State plan

It shall be prepared by the State Executive Committee, which shall include-

  1. The vulnerability of different parts of the state to different disasters,
  2. Measures to be taken for prevention and mitigation,
  3. The manner in which these measures shall be integrated with plans,
  4. Measures to be taken for capacity building and preparedness,
  5. Roles and responsibilities of different departments of the state government.    

District level

District Disaster Management Authority (DDMA)

Section 25 of the Act authorises the establishment of the District Disaster Management Authority. It shall consist of the following members-

  1. The Collector or District Magistrate or Deputy Commissioner of the district as an ex-officio Chairperson of the District Authority,
  2. The elected representative of the local authority as the Co-Chairperson,
  3. The Chief Executive Officer of the District Authority,
  4. The Superintendent of Police,
  5. The Chief Medical Officer of the district,
  6. Not exceeding two other district-level officers, to be appointed by the state government.  

In the case of tribal areas, as referred to in the Sixth Schedule of the Constitution, the Co-Chairperson will be the Chief Executive Member of the district council of an autonomous district. 

Under Section 30 of the Act, the powers and functions of the District Authority were laid down. Some of them are-

  • Preparing a disaster management plan for the district,
  • Monitoring the implementation of plans and policies,
  • Identifying the areas vulnerable to disasters,
  • Giving directions to district authorities and laying down the guidelines,
  • Assessing the state of capabilities for responding to any disaster and the preparedness measures,
  • Examining the construction in the district to check the standards for the prevention of disaster, and if have not been followed, directing the authorities to take action,
  • Identifying buildings or places which can be used as relief centres or camps at the time of the disaster,
  • Establishing stockpiles of relief and rescue materials and ensuring preparedness,
  • Organising specialised training programmes for officers or voluntary rescue workers,
  • Facilitating community training and awareness programmes, etc. 

Advisory Committee

Under Section 28 of the Act, the District Authority may constitute one or more advisory committees and other committees for the efficient discharge of its functions. 

District plan

Under Section 31 of the Act, ‘District Plan’ shall be prepared by the District Authority, which shall include the following-

  1. Areas vulnerable to different disasters in the district,
  2. Measures to be taken for prevention and mitigation of disaster,
  3. Measures for capacity building and preparedness,
  4. Response plans and procedures,
  5. Other matters as required by the state authority.

Penalties and punishment

Under Chapter X, namely, ‘Offences and Penalties’ of the Disaster Management Act, comprising Section 51 to Section 60, the various offences related to disaster management and its punishment are provided. Some of these are-

SectionOffencePunishment/ Penalty
Section 51Obstructing any officer or refusing to comply with directions.Imprisonment which may extend to 1 year or fine or both. If it results in loss of life or imminent danger, imprisonment may extend to 2 years. 
Section 52Making a false claim for obtaining relief, assistance, and other benefits.  Imprisonment which may extend to 2 years and a fine.
Section 53Misappropriation of money or materials, etc.Imprisonment which may extend to 2 years and a fine.
Section 54False alarm or warning leading to panic.Imprisonment which may extend to 1 year or with a fine.
Section 56Failure of an officer in duty or his connivance at the contravention of the provisions of this Act. Imprisonment which may extend to one year or with a fine.
Section 57Contravention of an order under Section 65 regarding requisitioning. Imprisonment which may extend to one year or with a fine or both.

Major disasters that occurred in India and the role of disaster management force

Kerala floods, 2018  

Kerala suffered from devastating floods between 1st June and 19th August in 2018 which were caused due to abnormally high precipitation that year, which was 42% higher than the average rainfall. This resulted in about 341 landslides which were reported in the hilly areas. Moreover, many dams were opened which caused the loss of many lives and resources. Nearly 400 human fatalities were reported and approximately 50 hectares of cultivable land were destroyed leading to losses in production. The National Disaster Response Force has played a vital role in the evacuation and rescue of the people, and livestock trapped in the floods. Learning a lesson from this, the Kerala Disaster Management Authority released a handbook clearing out the duties and responsibilities of every department and updating some protocols for enhanced preparedness in a single document so that adequate planning can be done before any disaster.  

Kashmir floods, 2014  

Jammu and Kashmir experienced the worst flood in 2013 in a hundred years. Nearly 200 lives have been lost and thousands of people have been stranded in the floods waiting for rescue. This disaster raised several questions about the role of the Disaster Management Authority as these floods have already been forecasted by the Indian Meteorological Department days before this incident. 

Uttarakhand flash floods, 2013 

Kedarnath in Uttarakhand witnessed ravaging flash floods in June 2013 which swept nearly 5000 lives away with many people missing. In addition, various villages, roads, infrastructure, lakes, and the natural environment were damaged, impacting the livelihood of millions. The military forces, army and team of the National Disaster Response Force engaged tirelessly in conducting rescue operations and evacuations. The Report released by the National Institute of Disaster Management blamed “climatic conditions combined with haphazard human intervention” for the disaster. But in actuality, the Meteorological Department had predicted in advance the ‘extreme weather conditions in Uttarakhand. But, again the Disaster Management Authority failed to prepare actionable plans to deal with the disasters, even in presence of warnings.   

Bihar floods, 2007 

The floods in Bihar caused due to incessant rains, in the month of July 2007 affected the lives of millions of people. Around 500 persons lost their lives and extensive damages were caused to the agricultural lands, property, and infrastructure. The Report published by the National Institute of Disaster Management reveals that the “District Disaster Management Plan, though available in districts, was not put into use”. This shows the inefficiency of the Disaster Management Authority in implementing the plans in the occurrence of a disaster.

Indian Ocean Tsunami, 2004 

In December 2004, India faced a devastating tsunami across the Indian Ocean, which caused the loss of around 10 thousand lives. It was a time when India had not constituted any Disaster Management Authority nor did they have any warning or risk assessment systems. It was after this disaster that the Indian Government enacted the Disaster Management Act 2005 which calls for the establishment of the National Disaster Management Authority. 

Gujarat (Bhuj) Earthquake, 2001 

On the morning of Republic Day in 2001, an earthquake struck Gujarat with a magnitude scale of 7.7. Thousands of people lost their lives and many buildings and infrastructure have perished.  Total damages to property caused a loss of about 7 billion dollars. In the backdrop of this disaster, the government was compelled to enact the Gujarat State Disaster Management Act in 2003 which was the first law of its kind to exclusively deal with disasters. Later, it paved the way for the enactment of the similar Disaster Management Act in 2005 for the entire country. 

Comparative analysis of disaster management

United States

The nodal agency to control and manage disasters in the United States is the Federal Emergency Management Agency (FEMA). Unlike India, it has classified the disaster based on size and type and other issues relevant to disaster management. It includes minor emergencies, limited and potential emergencies, and major disasters. Based on these classifications, steps were taken to contain the disasters. Moreover, they have a proper ordered mechanism for a disaster declaration, first at a local level and then at State and Central levels. It also ensures adequate financial assistance for disaster management. More focus was given to local level management to chalk out plans, emergency measures and other steps to mitigate disaster. 

Japan 

As in India, Japan also has a three-tiered disaster management system at three levels consisting of the National, Prefectural, and Municipal administrations. The main body responsible for disaster management in Japan is the Central Disaster Management Council. It also has a similar composition of members as in India. At the time of the disaster, the Cabinet Office takes the lead to manage the disaster in accordance with the magnitude of the danger from levels 1 to 5. Level 5 is the most dangerous one. At the time of a large-scale disaster, an Emergency Response Team was formed to contain the disaster and an Onsite Headquarters for Disaster Management was set up in the affected regions to carry out operations. And to carry out these operations in time, a time frame of initial 72 hours from the event of the disaster was set up for rescue and to coordinate each activity. The Council also makes plans based on the possibility of the occurrence of certain disasters in specific areas.    

Switzerland

It is known to have one of the most robust mechanisms for disaster management in the world. The body responsible for Switzerland is the PLANAT (the National Platform for Natural Hazards) which was created in 1997 by the Swiss Federal Council. As it is a densely populated mountainous country, it has broad experience related to disaster management. It has advanced mechanisms to fight disasters including precise forecasting of disasters, an early warning system, efficient emergency planning and concrete measures. It has developed a sustainable approach to disaster prevention and disaster management. 

COVID-19 and the Disaster Management Act, 2005  

The Disaster Management Act, 2005 was also invoked at the time of the COVID-19 pandemic in India. As the COVID-19 pandemic is a kind of biological disaster, it comes under the ambit of the Disaster Management Act of 2005. During the pandemic, various measures have been taken under this Act, including the ‘national lockdown’ imposed in March 2020 to contain the pandemic. The National Disaster Management Authority has time-to-time issued various guidelines related to different disasters, including ‘Guidelines on Management of Biological Disasters, 2008’, which was used to give directions and to carry out various activities to control the pandemic.  Various penalties and punishments were also imposed on the people under this Act, for not complying with the directions, making false claims, etc.

Disaster management challenges in India

Despite the comprehensiveness of this Act, which covers various aspects of disaster management and the constitution of authorities at all levels, there are still many challenges faced by disaster management in India.   

Scarce resources  

National Disaster Management Authority personnel lack the resources like types of equipment, facilities, technology, etc, which are needed in disaster management for its prevention or mitigation.

Inactivity of the established institutions 

It was seen that these established institutions remain inactive for the majority of the time and become operational only with a few honourable exceptions.

Overlapping of the functions 

These authorities at all levels- national, state or district, share overlapping functions with each other, making cooperation between them difficult. 

Absence of ‘disaster-prone zones’  

This Act is criticised many a time for its non-declaration of ‘disaster-prone areas’. Its declaration would help in improving the responsiveness of the concerned authorities at the time of disaster.

Non-setting up of the district fund 

Despite this Act providing for the establishment of the Disaster Response Fund and Disaster Mitigation Fund also at the district level, it has not been operationalised till now.  

Non-enforcement 

Lack of technology, lack of equipment and delays in response and implementation shows that the provisions of this Act have not been enforced in letter and spirit. 

The way forward  

Taking into account the responsiveness and working of the National Disaster Management Authority over the last decade, it seems that it has failed to actively respond in many emergency situations, predict disasters, and carry out operations on time.  Therefore, it needs some corrective mechanisms or amendments in the provisions of the Act to make it more responsive, efficient and accountable. The disaster management model of Japan can be considered for improving its effectiveness and implementation. Moreover, some redundancy in the provisions related to the authorities’ power and functions needs to be rectified. The various recommendations relating to the scrapping of the National Executive Committee, if put into consideration, can help in achieving its objectives by removing some ambiguities. 

Conclusion

Disasters cannot be prevented completely, whether it is natural disasters like cyclones, earthquakes, etc. or man-made disasters. But what is in our hands is its prevention and its mitigation through effective decision-making by identifying the disaster, taking measures, warning people beforehand, and successfully conducting safe rescue and relief operations. With the establishment of authorities at all levels, dealing with specific roles, responsibilities and duties, disaster management in India has improved to much extent. It needs only effective implementation of its provisions to make it a success. 

Frequently Asked Questions (FAQs) 

  1. Which organisation is responsible for disaster management in India?

The National Disaster Management Authority is the main authority to deal with disaster management in India, headed by the Prime Minister. 

2. When was the Disaster Management Act enacted?

The Disaster Management Act was enacted on 23rd December 2005.

3. Under which section of the Disaster Management Act, 2005, ‘disaster’ is defined?

Under Section 2(b) of the Disaster Management Act, ‘disaster means-  

  • a catastrophe, mishap, calamity or grave occurrence in any area 
  • arising from natural or manmade causes, or by accident or negligence
  • which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and
  • is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.’ 

4. Under which Section, the National Disaster Response Force is constituted?

Under Section 44 of the Act, the National Disaster Response Force shall be constituted to provide a specialised response at times of threatening disaster situations.

5. Which Chapter of the Disaster Management Act deals with offences and penalties?

The Chapter X of the Disaster Management Act, which comprises Section 51 to Section 60 deals with offences and penalties.

References 

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

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93rd Constitutional Amendment

By
Rachit Garg
-
0

This article is written by Shraddha Jain, a student of the Institute of Law, Nirma University, Ahmedabad. This article seeks to elucidate the background, scope, and criticism of the 93rd Constitutional Amendment (2005) along with observations made by the court to determine its constitutionality.

It has been published by Rachit Garg.

Introduction 

The Constitution of our country established the foundation for a casteless and equitable society. The legislature and government have taken actions such as reservations to address the issue of social inequalities. Reservation is among the techniques used to help the disadvantaged in society. The 93rd Amendment Act of 2005 is one such step taken by the government of India to uplift the socially and economically backward classes of the country. Through this amendment, clause 5 was added to Article 15 of the Indian Constitution, which enables the reservation for socially and economically backward classes in private educational institutes.

Background of 93rd Constitutional Amendment

According to Article 46 of the Indian Constitution, the state government should encourage education as well as the economic well-being of the underprivileged and safeguard them from social and economic inequality.

In the case of Islamic Academy v. State of Kerala, the Court ruled that the state government does not have the power to regulate fees and that educational institutions can only take admissions on the basis of common admission exams and performance.

The court ruled in T M A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, and P A Inamdar v. State of Maharashtra, (2005) 6 SCC 537, that the government does not have the power to enforce its reservation schemes on minority and non-minority unassisted private institutions, especially professional colleges. In these decisions, the Supreme Court disagreed with the reservation of seats at unaided minority or non-minority academic centres, claiming that it would be an infringement on their liberty. This would be a breach of their freedom under Article 19(1)(g) and also falls beyond the appropriate limitations specified in Article 19. (6).

The Constitutional (First Amendment) Act of 1951 introduced Article 15(4), which mentions academic development but does not contain the words “admission to educational institutions.” In 2006, Parliament passed the Constitution (Ninety-Third Amendment) Act, 2005, to bring private unaided academic institutions into the purview of the government’s reservation policies and to support the academic interests of the disadvantaged sections of the country. This amendment broadens the government’s power to establish exemplary provisions. 

The 93rd Amendment Act included Article 15(5), which mentions ‘admission to educational institutions’. By including clause 5 in Article 15, the ambit of the amended Act is greatly expanded. This gives union and state legislatures the authority to enact reservation-related legislation. After the 93rd Amendment Act, the Central Educational Institutions (reservation in admission) Act was enacted by the Union Parliament in the year 2006.

Purpose of the 93rd Constitutional Amendment

The 93rd Amendment Act of 2005 to the Indian Constitution added clause (5) in Article 15 which enables the government to make any special provision for the development of any socially and educationally backward classes of people, or scheduled castes or scheduled tribes, with regard to their enrolment in educational institutions, which would include private educational institutions, whether aided or unaided by the government, but apart from minority educational institutions.

Furthermore, the intention of the amendment is to increase access to quality education, particularly in professional education, for students from socially and educationally disadvantaged groups of people, as well as those from Scheduled Castes and Scheduled Tribes. In the case of Society for Unaided Private Schools of Rajasthan v. Union of India, Supreme Court stated, “ As compared to private unaided universities, the proportion of seats available in aided or government regulated institutions was low, especially in professional education”.

Directive principle of state policy in Article 46 provides that the government must develop with special consideration for the educational and economic interests of the disadvantaged groups of the population and safeguard them from social inequality. Therefore, the said amendment was enforced to intensify Article 15 in order to encourage the educational development of the socially and educationally backward classes of people and of the Scheduled Castes and Scheduled Tribes in matters related to admission in unaided higher education institutions, except for the minority academic institutions mentioned in Article 30(1)  of the Indian Constitution.

Provisions under the 93rd Constitutional Amendment

The 93rd Amendment Act of 2005 added clause (5) in Article 15 of the Constitution, which states: “Nothing in this article or clause (g) of Article 19(1) shall deprive the Government from attempting to make any special provision by legislation for the development of the any socially and educationally backward classes of residents or the Scheduled Castes or Scheduled Tribes inasmuch as of those kinds of special provisions pertaining to their enrollment in academic institutions, which include private educational institutions, regardless of whether they are aided or unaided by the State, apart from the minority institutions.”

Some important provisions

In 2006, the Parliament enacted the Central Educational Institutions (Reservation in Admission) Act, which laid down certain provisions:

 Reservation of seats in central educational institutions:

  • Scheduled Castes must be given 15% of the yearly authorised capacity in each field of study or department.
  • Scheduled tribes will receive 5% of the seats; and
  • 27% of the seats should be secured for other backward classes.

The Act does not apply to:

Case laws related to 93rd Constitutional Amendment

In P. Rajendran v. State of Madras, the court affirmed the backwardness criteria, which were primarily based on caste. The Court stated, “Today, if the reservation had been based solely on caste and would not have taken into account the social and educational backwardness, then it would contravene Article 15(1).” However, a caste is also one of the classes of citizens, so if the caste as a whole is socially and academically deprived, then reservation can be imposed in favour of such a caste on the grounds that it is a socially and educationally backward class of people under Article 15(4) and 15(5).

In Haryana Progressive Schools Conference v. Union of India, the Hon’ble Supreme Court observed that the power in provision (5) of Article 15 of the Constitution is a directed power that has to be executed for the restricted purposes as stated in the provision, and that whenever a legislation is passed by the government in exercise of its power given in clause (5) of Article 15 of the Constitution, the Court would have to analyse and determine whether it is for the development of the socially and educationally backward classes of people or for the SCs and STs, and whether the law is restricted to enrolling such socially and educationally backward classes of people, or to admittance of Scheduled castes and scheduled tribes to private universities, regardless of whether it is aided or unaided. If the Court finds that the power has not been used for the purposes referred to in clause (5) of Article 15 of the Indian Constitution, the Court must consider the legislation to be ultra vires Article 19(1)(g) of the Indian Constitution.

Constitutional validity of 93rd Constitutional Amendment

The constitutional validity of the 93rd Amendment Act of 2005 has been challenged in Ashoka Kumar Thakur v. Union of India (UOI) and Ors. In this judgment, the court went on to examine the viability of India’s reservation policy. Ashoka Kumar Thakur challenged the 93rd Amendment Act of 2005 on the basis that it violated the Constitution’s ‘basic structure’ and abridged the concept of equality under Article 14 read with Article 15.

The Court stated that the 93rd Constitutional Amendment Act of 2005 will have to be reviewed in the context of the Kesavananda Bharati case. The majority in the Kesavananda Bharati case won’t agree that facets of Article 14 constitute a part of the basic structure doctrine. The court further stated that while interpreting constitutional provisions, the key rule would be to look at the preamble to the constitution as the guiding principle and the directive principle of state policy as a source of interpretation. Therefore, the Court determined that the Constitution’s 93rd Amendment does not contradict the “basic structure” of the Constitution so far as it applies to state-maintained and aided academic institutions.

The court determined that the recognition of socially and economically backward classes is not based strictly on caste, and therefore, the classification of socially and economically backward classes is not a violation of Article 15(1) of the Indian Constitution, and hence Article 15(4) of Indian Constitution was affirmed.

Then in Pramati Educational and Cultural Trust v. UOI, the Supreme Court ruled that Article 15(5) of the Constitution is an empowering clause that will provide the fairness and equality guaranteed in the Preamble of our Constitution.

The Bench stated, Article 15 (5) is coherent with the features of socialism as given in the Preamble and the directive principles of state policy. It also helps in the advancement of the backward classes. It will ultimately result in an advanced socialistic democratic country, which will establish equality in our nation.

“Article 15(5) promotes the constitutional purposes and enhances the objectives desired to be attained by the Constitution, and permits Parliament to adopt legislative measures in that regard,” the Bench stated. Instead of changing any fundamental characteristics of the constitution or diminishing or modifying its basic structure, it enhances it.

Why is the 93rd Constitutional Amendment criticized?

  • It causes some dissatisfaction among the upper caste students because the amendment curtails their opportunity to get admission to higher educational institutions.
  • The reservation system is counter to the concept of equality. Equality requires equal rights and protection for all people. However, giving preferential treatment and protection to some groups of individuals goes against the equality doctrine. It goes against the fundamental idea of democracy.
  • The reservation in the admission of students undermines the efficiency and meritocracy of the admission process. Because qualified and bright individuals are denied their due share of admissions, and  the private educational  institutions are bound to compromise with the quality.
  • The definition of the backward classes is not given in the Constitution. Although Article 340 allows the creation of a panel to evaluate ‘socially and educationally backward classes’, yet there is no commonly recognised procedure.
  • Reservation policy, as mentioned in the amendment, gives rise to class-based politics in the Indian political system. The over-consciousness of caste distinction is hindering national unity. Furthermore, the people argue that castes have been used to preserve the vote banks of various political parties.

Conclusion 

It is obvious that identifying as Socially and Educationally Backward Classes or Other Backward Classes cannot be done exclusively on the basis of ‘caste’. Article 15(5) is an enabling provision to Article 15, the purpose of which is to aid in the development of weaker sections of society and to prioritise social interests over individuals or groups that are developed, both socially and educationally.

Frequently Asked Questions (FAQs) 

  1. What was the status of Article 15 prior to the enactment of the 93rd Constitutional     Amendment Act in 2005?

Article 15 of the Indian Constitution states that no one should be discriminated against on the basis of their religion, race, caste, gender, or place of birth. However, Article 15(4) states that the state may establish specific provisions for the development of any socially and educationally disadvantaged sections of the population, as well as the Scheduled Castes and Scheduled Tribes. This reservation system was successfully adopted by all government organisations. However, there was disagreement over reservations at private educational institutes, which was later settled by the 93rd Constitutional Amendment Act.

  1. How does the court decide whether a particular feature of the Constitution is part of the basic structure or not?

It must be evaluated in each individual situation, keeping in mind the framework of the Constitution, its purposes and intention, and the Constitution’s integrity as a basic tool for the country’s governance. Only an amendment that provides a situation that cannot be adequately described by any definition of equality would violate basic structure theory.

References 

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

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

https://t.me/lawyerscommunity

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

Download Now
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