Evidence required to prove Section 498A IPC

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March 16, 2022

The article is written by Ansruta Debnath, a law student of National Law University Odisha. This article enumerates the types of evidence that are required to prove cruelty as given under Section 498A IPC.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Section 498A is an important provision in the Indian Penal Code, 1860 that punishes cruelty against a woman by her husband or his relatives. Because cruelty is subjective, there are various requirements for successfully proving it in a Court of law. When successfully proven, relief may be provided to the woman, who more often than not in these cases are victims of domestic violence. Sometimes, intense cruelty can even lead to the woman committing suicide. In such cases, it is the duty of the prosecution to ensure that the wheels of justice are driven in the right direction, and the people who have committed such crimes are adequately punished by law.

What is Section 498A IPC

Section 498A of the Indian Penal Code, 1860 talks about the subjection of a woman to cruelty by her husband and or his relatives. This offence is cognizable, non-bailable, non-compoundable and triable by a Magistrate of the first class.

Cruelty has been described in this statute to be any wilful conduct that has the capacity to drive the woman to commit suicide or to cause grave injury or danger to life, limb, the physical or mental health of the woman. This Section also includes harassment of a woman with respect to coercing her or any other person related to her to give up any property or personal security. Harassment of a woman for her failure to meet that unlawful demand of giving up property is also cruelty.

As is clear from the substance of this Section, it is often invoked in cases of domestic violence. This was specified in the case of B.S. Joshi v. the State of Haryana (2003) cautioned against taking a hyper-technical view of this Section. That being said, the increasing misuse of this Section to settle personal scores also warrants due attention. Courts must carefully decide whether a case of cruelty is substantial enough and has enough evidence to necessitate prosecution or not.

The distinction between Section 498A IPC and 304B IPC

Sec tion 304B punishes the cruelty and harassment perpetrated by a husband or his relatives on a woman, the wife when such cruelty (which can be in connection to dowry) leads to the death of the woman by bodily injuries, burns (or any other method which deviates from the normal circumstances). Further, the death must take place within seven years of marriage and the same is called “dowry death”

The distinction between these two Sections was clarified in Shanti v. the State of Haryana (1991) and Keshab Chandra Panda v. State (1994). It was stated that these two sections are not mutually exclusive. While cruelty defined in Section 498A is the same as cruelty under Section 304B, under Section 498A, cruelty itself is punishable. But, under section 304B, dowry death as a result of cruelty is punishable. Further, Section 304B calls for a time frame of seven years, something which is not present in Section 498A. Moreover, a person charged under Section 340B can also be convicted under Section 498A without the charge being there if such a case is made out.

Evidence required to prove Section 498A IPC

From a plain reading of Section 498A, the ingredients of cruelty thus must be an overt, wilful act that might lead to a woman committing suicide or cause grave injury to her physical or mental health of herself. Further, continuous harassment of a woman also constitutes cruelty. The types of evidence that can successfully establish a strong prosecution case and aid in the conviction of the accused have been enumerated below. Although these categories are overlapping, they need individual discussion because of the different requirements of their admissibility in courts.

Oral Statement

Oral statements in courts under oath help in the examination of witnesses and the parties involved and reduction of fabrication of evidence. According to Section 59 of the Indian Evidence Act, 1872, oral statements which are a form of oral evidence can be used to prove material facts of a crime (other than the contents of documents or electronic records). Further, it has also been mandated in the Evidence Act that oral evidence must be direct (Section 60) with respect to witnesses seeing, hearing or perceiving a crime. For example, with respect to Section 498A, eyewitnesses that saw the husband assaulting his wife or neighbours hearing a wife being continuously disparaged by the husband for years can give testimonies which will be considered as oral evidence.

Direct Evidence

Any type of evidence that directly points to a crime being committed is direct evidence. It may be oral or documentary. For example, the diary of a wife which chronicles the continuous harassment she is facing which finally leads her to commit suicide can be considered as direct evidence.

Indirect Evidence

This type of evidence requires support from other evidence to establish a crime. For example, a wife committing suicide is indirect evidence of cruelty. Evidence that proves that she suffered physical or mental trauma at the hands of her husband or his relatives and that the same drove her to commit suicide must be proven.

Medical Evidence

A very important type of evidence that helps in proving cases of cruelty under Section 498A is medical evidence. They can be oral or documentary. Thus, medical reports of the wife seeking care from a professional with respect to injuries sustained either physically or mentally all come under this category. Of course, such evidence will be indirect and the burden of proof is on the prosecution to successfully establish a link between such injuries and wilful, cruel conduct of the husband and his relatives. It is important to note, however, that in case of conflict between direct evidence of eyewitnesses and medical evidence, it was said in Prem v. Daula (1997) that eyewitness evidence, if unimpeachable, should be preferred and medical evidence cannot nullify evidence of eyewitnesses.

Expert witness

Section 45 of the Indian Evidence Act allows the court to seek expert opinions in matters including and not restricted to science. Thus, medical professionals like doctors can be called on to give oral evidence in court. Such evidence will be part of the oral medical evidence and when it corroborates with oral evidence of eyewitnesses to acts of cruelty, it further helps the case of the prosecution.

Electronic evidence

Electronic records that point to cruelty are admissible in the courts, as given in Section 65B of the Evidence Act. For example, a video recording of the act of cruelty on a woman by her husband is an electronic form of direct evidence.

Presumption under the Indian Evidence Act, 1872 – Section 113A

Section 113A talks about the presumption as to abetment of suicide by a married woman. It states that in cases when a wife commits suicide within seven years of the marriage and it can be proven that the woman was subjected to cruelty, within the meaning of Section 498A of the Indian Penal Code, by her husband or the husband’s relatives, then there will be a presumption that the husband or his relatives abetted that suicide.

In State Of M.P. v. Geetabai (1996), the Court held that for this presumption to be invoked, the prosecution must first prove that cruelty took place against the deceased by the accused. On the other hand, when the woman commits suicide after more than seven years of marriage, this presumption will not be invoked, despite their being cruelty committed against her within the meaning of Section 498A. In such cases, the prosecution must additionally prove that the cruelty the woman was subjected to abetted her suicide. This principle was reiterated in State of Punjab v. Iqbal Singh (1991).

Other relevant case laws

In Girdhar Shankar Tawade v. the State of Maharashtra (2002), the Supreme Court held that Section 498A makes it clear that there must be a series of events or acts in order to be harassment under this Section. Moreover, there must be some cogent evidence to bring home the charge under this Section.
In Rupali Devi v. the State of Uttar Pradesh (2019), the case involved the wife leaving the matrimonial home after suffering from intense physical abuse and going to her parental home. The Court observed that after leaving the matrimonial home, the physical abuse and thus, physical cruelty stopped. But, that did not necessarily imply that mental cruelty stopped. Mental cruelty that is borne out of physical cruelty or abusive and humiliating verbal exchanges would continue in the parental home even though there may not be any overt act of physical cruelty at such a place.
Reshma Rakesh Kadam v. Rakesh Vijay Kadam (2013), a case of Section 498A was dismissed on the grounds that the prosecution was unable to prove mental cruelty over the wife by her husband and his mother. Instead, the defendant was able to successfully establish that the husband was actually being subjected to cruelty by the wife.

Conclusion

From the above discussion, what can be concluded is that for proving cruelty, direct evidence has the most value. One single act of cruelty cannot ensure successful conviction under Section 498A. Instead, a series of acts that can be shown to have continuous detrimental effects, both mental and physical, on the woman can ensure a conviction.

References

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Contracts in the Pharmaceutical Industry and the clauses covered under it

By

Sneha Mahawar

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March 16, 2022

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This article is written by Anoushka Rawat and pursuing a 6-Month Growth Camp: Preparation for LLM Abroad. This article has been edited by Prashant (Associate, Lawsikho).

This article has been published by Sneha Mahawar.

Introduction

The Pharmaceutical Industry develops, manufactures, distributes, and markets pharmaceuticals or drugs that are approved for use as medications. Drug companies are licensed to trade in generic or potential brand-name medications and clinical devices. They are based on a variety of regulations and rules covering patent protection, testing, and ensuring the safety and viability of pharmaceuticals, as well as their marketing.

A contract for products and services is a legally binding agreement between a customer and a provider for a specific period of time. In the public sector, the customer is usually the government, whereas the provider could be a private enterprise entity.

Contracts are a major source of cash, but poorly handled contracts may become your largest liability. To deal with the increasing complexities, pharmaceutical businesses want technologies that will streamline their contracting process and improve operational efficiency. Because of the rigorous restrictions and consequent increased contract risks, investing in innovative contract management systems is no longer a luxury but a requirement.

Types of contracts

Quality agreements

Quality agreements are signed by parties participating in contract medicine manufacturing. They define how each party will comply with CGMPs. CGMPs are the Current Good Manufacturing Practice regulations enforced by the FDA. Supplier and vendor quality agreements provide the terms governing the quality of materials or services given to a drug manufacturing plant.

The FDA encourages parties engaged in contract manufacturing to implement quality management practices. This guidance builds upon the quality risk management principles and recommendations outlined in the ICH guidance to illustrate key points in developing and executing quality agreements that describe and support contract manufacturing arrangements.

License agreements

License agreements are agreements is between two parties, usually a drug company and a pharmaceutical laboratory. The laboratory produces new drugs and seeks a patent for the same. The laboratory then grants the license to produce these drugs to a drug company.

This is very often seen in a marketplace where the laboratory does not have the resources to produce drugs on a large scale, and so it grants a license to the big drug companies that have adequate resources for the same.

Product supply agreements

The product supply agreement is a contract signed by a supplier and a buyer to supply and acquire medication or other pharmaceutical items. The contract specifies the parties’ agreed-upon terms and conditions, as well as the repercussions of violating the agreement.

R&D agreements

R&D Agreements, pharmaceutical businesses enter into collaborative R&D partnership agreements in which the contracting parties commit to collaborate on medication research and development and later commercialization.

Contracts for technology

Contracts for Technology, pharma businesses enter into collaboration arrangements with CROs and other scientific technology suppliers, such as biochemical factories. They supply the equipment that these firms require in their laboratories in order to conduct research or produce pharmaceuticals.

Challenges faced while drafting such contracts

Poor Regulatory Compliance

Pharmaceutical and biotech companies must continue to pursue research and development. Contract managers frequently lack the time or scientific equipment to verify the scope to which parties are complying with ever-changing worldwide standards, presenting legal compliance for each location or nation, and so on, making management and budgeting for drug clinical trials difficult.

Inefficiencies in operations

The lack of automated technologies frequently results in missing expiry dates. In the sector, sending the wrong documentation for approval, signing the wrong paperwork, or failing to get all signatures are all fairly typical inefficiencies. Contracts or associated papers are frequently lost as a result of failed links, file restructuring, or inappropriate filing. This is due to the inefficient decentralized approach of document storage used in traditional contract administration.

General clauses which are mentioned under the contract

Recitals

This clause, which is rarely acknowledged or appreciated, is the backbone of the whole contract. This clause serves to establish the tone for the entire contract even before the real details of what is to be written out in the contract. This phrase plainly explains in unambiguous words which parties are to be considered in the construction of the contract, as well as acknowledges and specifies the purpose or intention of the parties in forming the contract. It actually enlightens the reader as to why the contract is being established and between whom it is being formed. The parties specified in this section are commonly referred to as contract signatories. If a dispute emerges as a result of the contract, it is the signatories who are obligated by the contract, not any third party.

Scope and purpose of the agreement

This is the most significant section in the entire agreement since it specifies the complete scope of work as well as the goal or aim of the parties in entering into this agreement. Qualification, calibration, and maintenance of analytical instruments and manufacturing equipment; validation of computer systems, analytical procedures, and manufacturing processes; specifications used to pass or fail analytical tests; supply handling, storage, and preparation; receipt, analysis, and reporting of samples; collection and management of laboratory records; and deviation logging should all be covered by the clause.

Confidentiality

When the parties engage in a contract, they communicate information, which is frequently of a sensitive nature. Each contract includes a confidentiality provision to prohibit the other party from disclosing the information. This provision binds each one of the parties in the sense that if one of the parties discloses the information given according to the agreement, the other party can hold the disclosing party accountable before the appropriate authorities. This allows the parties to maintain tabs on each other and ensures that no confidential information is disclosed and that both the parties and their private information, is protected. This clause ensures that they understand what information is secret and what is not. Furthermore, the scope of the Confidentiality Clause can be agreed upon between the parties, which clarifies to what extent the confidential information will be covered, i.e., will it cover everything shared during the duration and performance of the contract, or will it be limited to only a few selected items labelled as confidential by the parties.

Force Majeure

Due to the extraordinary conditions that this COVID-19 pandemic has created across the world right now, the significance of this provision has grown even more. The phrase ‘Force Majeure’ means ‘greater force.’ As the name implies, this provision applies when a circumstance arises that is unexpected and beyond anyone’s control. When one of the parties is unable to execute its contractual obligations owing to an incident that is unanticipated and beyond anyone’s control, , the party in default is excused from performing under the Force Majeure clause. This clearly demonstrates the significance of this phrase and its application in such situations. It should be noted, however, that there is no specific legal meaning of the phrase Force Majeure, thus it is normally desirable to state in the contract itself what all conditions and occurrences can be accounted for by triggering this clause. For example- Act of God, Natural Calamities, Pandemic or etc.

Liability

This section specifies the culpability for carelessness and purpose, and so holds the contracting/conducting parties liable. This section also mentions several contractual responsibilities that are of significant character. It allows the signed agreement to work properly. It should be emphasised that the terms of this section bind not only the contractual parties but also their representatives, agents, and subordinates. This clause is exhaustive. The provisions of this clause are subject to upcoming or uncertain events.

Intellectual Property Rights

This clause defines the limits of the intellectual property rights owned by either of the parties. It is entirely the decision of the party that owns the IP rights to license or assign them to the other party under this contract. It can also be specified under this clause, that if a party is providing the other party the right to use their intellectual property, it does not result in the ownership of that IP by the other party. It is the sole discretion of the owner party to decide on the limits of the use of their IP.

Assignment

Assignment clauses are legally enforceable elements in contracts that allow one party to transfer ownership or assign contractual duties and rights to another. In other words, an assignment clause allows a contract to be reassigned to a different party. An assignment clause specifies which, if any, of a party’s contractual duties and rights may be assigned or transferred to another party.

Dispute resolution

Disputes are inescapable and are expected to arise in every contract; thus, this provision is essential for avoiding them and promoting the smooth operation of any contract. This provision, as the name implies, is intended to settle any disputes that may develop between the parties throughout the period of the contract. A well-drafted dispute settlement clause is critical since it may impact the relationship between the parties in the event of a disagreement. A quick and amicable resolution of the conflict is generally sought in commercial contracts since the parties cherish their business relationships and would rather not sever them over a minor disagreement. The dispute settlement clause is a method that the parties can adjust to their specific needs and expectations. A well-drafted provision should include an escalating form of conflict settlement, which means that the parties must first try to resolve the problem through several Alternate Dispute Resolution strategies before moving on to a severe manner of dispute resolution. However, ADR mechanisms are preferable in the current era, which includes mediation or negotiation as the first step, followed by arbitration. This growing trend in ADR mechanisms is due to their effective and efficient procedures which are less time-consuming and save large amounts of money in conflict settlement.

Termination

The termination clause is the most significant provision in a contract, and it is usually added in the conclusion. Every contract must come to an end, whether it is at the conclusion of the contract’s term or in the middle due to a party’s default. In each of the aforementioned cases, a good departure strategy should be established, followed by an effective escape. This specific clause performs the same function by allowing the parties to pre-define particular conditions and circumstances so that the termination may be completed without difficulty. When any of the specified circumstances set forth in the notice of termination is met, the termination procedure is activated, resulting in the termination of the contract. The circumstances mentioned in the notice of termination should be clear, with no room for ambiguity. In addition, a prior notice time should be established, following which the termination will take place.

Conclusion

The drafting style of a contract varies from person to person, and there is no set standard pattern for it. Aside from the contract’s fundamental framework, the terms can be tailored by the parties to suit their needs. Any unnecessary data or clause which makes it restrictive might place the parties in a conflict, therefore a good draft should stick to just the demands of the parties. A decent clause should be well-balanced, with a draft that is neither excessively restrictive nor too lenient. To make each clause a great match for the contract, it should be given due care and importance, and only precise and essential information should be included. The clauses listed above are an essential aspect of every contract and may be found in all business contracts. It is critical to comprehend the clauses under certain contract conditions and how they might be enhanced. Before designing these clauses, one should thoroughly comprehend their purpose.

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.

All you need to know about tenancy agreements

By

Rachit Garg

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March 15, 2022

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This article is written by Abanti Bose, from Amity University Kolkata, India. This article provides a detailed understanding of tenancy agreements and states all the essential clauses of a tenancy agreement.

It has been published by Rachit Garg.

What is a tenancy agreement

A tenancy agreement is a legally binding agreement between the landlord and the tenant. It specifies all the details of the tenancy agreed upon by the landlord and the tenant. A tenancy agreement should be in writing and a copy of such agreement must be handed to the tenant before the speculated tenancy period. Although in the absence of a written agreement the Residential Tenancies Act, 1986 will be applicable. The tenancy agreement must be in conformity with the statutory law.

Tenancy agreements give rights to both parties; for example, it gives the tenant the right to occupy the accommodation and the landlord the right to collect the rent. It is the duty of the tenant to read the agreement before signing it and in case of not being able to understand any terms and conditions they must seek legal advice.

Essentials of tenancy agreements

The essential elements of a tenancy agreement are listed below:

The tenancy agreement must contain the legal names of both the tenant and the landlord.
It must also contain the start and end dates of the tenancy period.
The amount of rent agreed upon by the landlord and the tenant and on the date of each month, it must be honoured. The mode of payment of the rent should also be specified in the tenancy agreement.
The agreement can further include utility charges such as electricity bills, gas bills, etc. It might contain miscellaneous charges like club membership fees, maintenance charges and parking charges.
A tenancy agreement often contains a clause for security deposit which can be refunded at the end of the stipulated tenancy period. And in case of any damages, the landlord can deduct the amount from your deposit in accordance with the terms mentioned in the tenancy agreement.
Tenancy agreements must specify the reasons which could lead to eviction such as damage to the building, disturbance to the neighbours, failure to make payments, etc.
It is essential for the tenancy agreement to specify the notice period and penalty clause, in case of a situation of eviction due to default.
A tenancy agreement must be registered. In order to register one needs to pay stamp duty and registration fee. Stamp duty varies from state to state and is also dependent on the duration of the tenancy agreement.

Documents required for a tenancy agreement

The documents required for the tenancy agreement are:

Proof of the ownership of the property.
Property papers such as tax receipts.
Two passport photographs of each of the parties and one copy of each of the witnesses.
Documents of the address of both parties and the witnesses.
Route map of the property which will be rented.

Express terms of a tenancy agreement

Written tenancy agreement

Most of the tenancy agreements are written agreements between the landlord and the tenant. A written agreement specifies the terms and conditions of the tenancy in a written form and it must be signed by both the landlord and the tenant in the presence of two witnesses. A copy of the tenancy agreement must be given to the tenant and in cases of a joint tenancy, a copy of the tenancy agreement must be given to each tenant.

Verbal tenancy agreement

A verbal tenancy agreement is when there is just a verbal agreement between the tenant and the landlord. A verbal agreement decides the basic terms of the tenancy such as the amount of rent, term of the tenancy, etc. However, all the rights and obligations of the tenant and landlord must be implied and in accordance with the law due to the absence of any written agreement.

Various types of tenancy agreements in India

Rent agreement

A rent agreement is a legally binding contract between the property owner and the tenant who wishes to occupy the property for a temporary period. The agreement contains details, such as the name of the property owner and the tenant, description of the property, amount of rent, late payment charges, grace period, amount of security deposits and other facilities to which the tenant is entitled.

A rent agreement is of a short duration that is, in India it is for 11 months. The registration of rent agreement is not mandatory however if the rental period exceeds 11 months it needs to be compulsorily registered under the Registration Act, 1908 or else it would not be admissible as evidence in the court of law.

Lease agreement

A lease agreement is for a longer duration than a rent agreement. It is an agreement between the landlord and the tenant for a period longer than twelve months. When the landlord wants to avoid the changes in the sustainable income, they prefer to put the property on lease. A lease agreement must be stamped and registered so that it can be provided before a court of law.

The parties to a lease agreement are known as lessor and lessee. Unlike a rent agreement, a lease agreement can continue for a much longer period. Furthermore, a lease agreement also creates inheritable rights.

Leave and licence agreement

The leave and licence agreement is governed by the Indian Easement Act, 1882. In this agreement, the property of the licensor is occupied by the licence holder. The agreement grants permission to occupy the property and not rights to the licence holder. And the property owner that is the licensor always has an upper hand in the eviction of the occupier.

Important clauses of a tenancy agreement

Name of the parties

The tenancy agreement must state the names of the landlord and the tenant. The names mentioned in the agreement will be legally obligated to one another and in case of any breach in the agreement, one party can hold the other accountable.

Duration of tenancy

The tenancy agreement must specify the agreed-upon time for the tenant to occupy the property. After the expiry of the specified term of the tenancy, it can be renewed with the prescribed formality by mutual consent of both parties. It is crucial to mention the fixed time as it not only protects the landlord but also the tenant as the landlord cannot force the tenant to vacate the premises before the due date.

Rental amount

The amount of rent fixed for the specified period of tenancy must be mentioned in the tenancy agreement. The date of every month when it is payable and the mode of payment of the rent must also be mentioned in the agreement. This clause protects the parties from the unlawful holding of the money or payment of the money.

Cost of maintenance

Some tenancy agreements mention a clause for the cost of maintenance. Furthermore, apart from the cost of maintenance other expenses such as electricity bills, water bills, etc. must be stated under this clause.

Security deposit

A tenancy agreement often contains a clause for security deposit which can be refunded at the end of the stipulated tenancy period. And in case of any damages, the landlord can deduct the amount from your deposit in accordance with the terms mentioned in the tenancy agreement.

Amenities attached with the property

All the amenities attached to the property must be mentioned in the tenancy agreement. This must be done as a security to protect both the landlord and his property from any damages or financial settlement of any repairs during the tenancy period. This clause must also mention the latest condition of the property.

Signature

It is the most important part of the tenancy agreement. After reading and understanding the terms and conditions of the tenancy agreement both the landlord and the tenant need to sign the agreement in front of two witnesses. It assures that negligence in compliance with the agreement will lead to legal penalties by either party.

Exit clause

The exit clause states clearance of any other penalties or resolving any dispute between the landlord and the tenant before the termination of the tenancy agreement or before leaving the property.

Conclusion

A tenancy agreement helps in protecting both parties in case of any dispute or any breach caused by either party. It provides security to the property of the owner and also protects tenants from unlawful demands of the owner. A well-drafted tenancy agreement consists of all the essential clauses such as the name of the parties, duration of the tenancy, rental amount, security deposit, etc. Therefore, it is important to understand the tenancy before signing it and one must always seek legal advice in case of failure to understand a clause or in order to negotiate a clause in the tenancy agreement.

Sample tenancy agreement

This tenancy agreement is made on this__________(date of the tenancy agreement) by________________(name of the landlord). Son of_______________ (father’s name of the landlord), Address:_________________________________________________(residential address of the landlord). Hereinafter called the landlord, party of the first part.

AND

_____________________________ (name of the tenant), son of_______________ (father’s name of the tenant), Address:_________________________________________(residential address of the tenant). Hereinafter called the tenant, party of the second part

The term landlord and the tenant shall mean and also include their legal heirs, successors, assigns, representatives, etc.

Whereas the first party is the owner and in the possession of the property No:………………………. (address of the rented property) and has agreed to let out the said property to the second party for a monthly rent of Rs. ………../- (in words) per month.

Now this rent agreement witness as under:

That the tenant will have to pay Rs. ______/- (in words) as monthly rent, which does not include electricity and water charges.
That the tenant shall not lease or rent the property to a subtenant under any circumstances without the consent of the landlord.
That the tenant shall follow all the rules and regulations, by-laws set by the local authorities in respect of the leased property and will not get involved or do illegal activities in the leased property.
That this tenancy agreement is granted for a period of eleven (11) months starting from ___________ (date of rent commencing from) and this contract can be extended further with the mutual consent of both the parties as per the current rental value in the market.
That the tenant shall pay the water and electricity charges on the basis of the consumption to the landlord/owner.
That the tenant shall not be permitted to do construction in the rented premises. Besides, he/she could do the installation of temporary decoration, wooden partition/cabin, air conditioners etc. without seeking the permission of the landlord.
That the tenant is not allowed to make any changes in the rented property without the written consent of the owner.
That the tenant will have to allow the landlord or his authorised agent to enter into rented premises for its inspection or general checking for any repair work if needed.
That the tenant shall keep the premises clean and shall not involve in any activity that causes problems to neighbours.
That the tenant shall himself/herself bear the cost of day to day minor repairs.
That this contract/agreement could be revoked before the expiry of this tenancy period by serving one-month prior notice.
That the tenant shall not involve in illegal activities and will not keep any offensive, dangerous or explosive articles on the premises.
That the tenant shall pay one month’s rent in advance to the landlord that would be further adjusted in the monthly rent.
That both the parties, landlord and the tenant, have read and understood this agreement and have agreed to sign the same without any pressure from any side.

In WITNESS WHEREOF the lessor/owner and the tenant/lessee have hereunto subscribed their hand at ______ (place) on this the _____________ (date of rent agreement) year first above mentioned in presence of the following witnesses.

Witnesses:

1.

2.

___________ (name of the landlord) _________________ (name of the tenant)

(It must be noted that it is just a sample agreement for reference. Legally binding tenancy agreements are drafted and notarized by advocates focusing on specific needs of the tenant and the landlord.)

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.

All you need to know about non-obstante clause

By

Rachit Garg

-

March 15, 2022

0

This article has been written by Adhila Muhammed Arif, a student of Government Law College, Thiruvananthapuram. This article seeks to explain what a non-obstante clause is and illustrate the non-obstante clauses that we can find in different statutes enacted in India.

It has been published by Rachit Garg.

Table of Contents

Introduction

There are different elements that are relied upon by the legislature in constructing a statute which we can find while interpreting them. Such aids or elements are used by lawmaking bodies in order to make their real intentions clear to the public. Mainly, we can find two categories of elements that aid the construction of statutes. The first category is internal aids to construction, and the second is external aids to construction. Internal aids to construction are those aids that we can find inside the statute itself. Some examples of internal aids to construction are preamble, headings, explanations and clauses. External aids are aids that are not found inside the statute. Such aids are found only in external sources. Examples of external aids to construction are reports of a committee or a commission, official statements, dictionary meanings, foreign decisions, historical background, etc. A non-obstante clause is one of the internal aids to construction. A non-obstante clause is added to a provision in order to uphold its enforceability over another provision that is contradictory to it. This clause is used to clarify the intention of the legislature in cases where two provisions appear contradictory. This is because the legislature can never have contradictory intentions.

Non-obstante clause : meaning and interpretation

Definition

The word non-obstante stems from Latin and it means notwithstanding or despite a law. When we see the words “notwithstanding anythіng contaіned іn thіs Act” or “notwithstanding anything contained in some particular Act” or “notwithstanding anythіng contaіned іn some partіcular provіsіon іn the Act”, we can call such a clause as a non-obstante clause. This is always inserted at the beginning of a provision with the objective of giving the provision an overriding effect over the statute or provision mentioned in the non-obstante clause. It essentially means that in spite of the provision or Act mentioned in the non-obstante clause being in force, the provision that comes after that would be fully enforced without being restricted by the provision or Act mentioned in the non-obstante clause. Such a clause is used to modify the Act or provision it carries or restrict its application in certain circumstances.

How to interpret a non-obstante clause

It is the opposite of the phrase “subject to” that we see commonly in statutes. When the words “subject to” are used, it means that the provision yields to another provision that is mentioned in the clause. This was affirmed in the decision of T.R. Thandur v. Unіon of Іndіa (1996).

It is also noteworthy that this clause is distinct from phrases such as ‘wіthout prejudіce’. When this phrase is used, it means that the other provision mentioned in the clause is still operative and any action taken under the enacting part of the section must not be inconsistent with the other provision. This was affirmed in the case of Punjab Sіkh Motor Servіce, Moudhapara, Raіpur v. R.T.A., Raіpur (1966).

Non-obstante clauses can sometimes help with ambiguous sections. However, it cannot be used in a way that limits or widens the scope of the enacting part of the section more than what is necessary, particularly when the section is very clear on its scope. While trying to interpret such sections, one should not go beyond the intentions of the legislature. This view was taken in the cases of South Іndіa Corporatіon Pvt. Ltd. v. Secy., Board of Revenue, Trіvandrum (1964) and Kerala State Electrіcіty Board v. Іndіan Alumіnum Co. (1976).

In the case of І.T.O. v. Gwalіor Rayon Sіlk Manufacturіng (Weavіng) Co. Ltd. (1976), it was viewed that while interpreting a section with a non-obstante clause, the court should also find the extent to which the legislature intended to give the overriding effect.

In cases where two or more provisions applied to the same area contain non-obstante clauses, there arises confusion as to which provision will prevail over the others. In such instances, the court must look into the object and purpose of all the laws involved. The court must apply the rule of harmonious construction while interpreting the conflicting laws. This view was taken in the case of Shri Swaran Singh and Anr. v. Shri Kasturi Lal (1977).

In the case of Bipathumma and Ors. v. Mariam Bibi (1966), the Court took the view that non-obstante clauses do not have a repealing effect. They do not completely supersede the other provisions of law. Such a clause simply performs the function of removing impediments created by the other provisions from affecting the enforcement of the enacting part of the concerned section it is attached to.

In the case of RBI v. Peerless General Finance and Investment Co. Ltd. (1987), Justice Chinnappa Reddy observed that non-obstante clauses must be interpreted in a manner that both the context and the textual interpretation match. He was of the opinion that both the text and the context are the basis of the interpretation. He further expressed that both are very relevant to the interpretation of a non-obstante clause and neither of them can be missed out. A statute can be interpreted the best when we know the intention or the reason behind why it was enacted.

Non-obstante clauses in the Indian Constitution

Examples of non-obstante clauses

There are several provisions in the Indian Constitution that carry non-obstante clauses. The following are some of such provisions:

Articles 5 to 11 of the Indian Constitution deals with the right of citizenship. Article 5 entitles the right of citizenship to anyone born or born to parents who were born in India, or anyone staying in India for more than five years. Article 6 deals with the citizenship of persons who have migrated from Pakistan to India. The Article begins with the words “rights of citizenship of certain persons who have migrated to India from Pakistan Notwithstanding anything in Article 5” before we see its enacting part. It essentially means that the provision in Article 6 prevails over the provision in Article 5 for those who have migrated from Pakistan to India. The same can be seen in Article 7 which states “notwithstanding anything in Article 5 and 6”.
Article 34 of the Indian Constitution deals with the restriction of Fundamental Rights when martial law is imposed. It uses the words “notwithstanding anything in the foregoing provisions of this Part” to indicate that the provision in Article 34 will prevail over the Fundamental Rights guaranteed by the preceding provisions in situations where martial law has been imposed.

Case laws with respect to non-obstante clause

In the cases of RS Raghunath v. State of Karnataka (1992) and Dominion of Іndіa v. Shrіnbaі Іranі (1954), the Court held that when the words “notwithstanding anything contained in the Constitution” has been added to a provision by a constitutional amendment, the provision must still be interpreted harmoniously with the basic features of the Constitution. However, it cannot be held void on the ground that it infringes any constitutional provision. This is because the non-obstante clause protects the provision from such impediments.

In the case of Chief Information Commissioner v. High Court of Gujarat (2020), the Court held that a general law cannot override a special law that is already existing even if the general rule has a non-obstante clause attached to it. The judgement stated that the High Court Rules framed under Article 225 of the Indian Constitution that provides a mechanism for invoking the Right to Information in a particular manner can be preserved and followed. The judgement also stated that this mechanism is not overridden or discontinued merely because of the subsequently enacted Right to Information Act, 2005. The Supreme Court affirmed that the non-obstante clause in the Right to Information Act will cause the Act to override the provision in Article 225 of the Indian Constitution, only in cases where the two statutes are inconsistent. The object of the Right to Information Act is to protect the right to information of the citizens and enforce it in a manner that only requires the use of minimum resources. The procedure laid down by the High Court rules is unsophisticated and uses very few resources. The procedure simply involves filing an application along with the court fee and a statement, citing the reasons behind filing the application.

Non-obstante clauses in other statutes

Section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951, contained a non-obstante clause that states “notwіthstandіng anythіng contaіned іn the Іndіan Bar Councіls Act, 1926, or іn any other law regulatіng the condіtіons subject to whіch a person did not enter іn the roll of Advocates of a Hіgh Court may be permіtted to practіce іn that Hіgh Court”. In the case of Ashwіnі Kumar Ghosh v. Arabіnda Bose (1952), a question arose regarding the interpretation of this provision. In this case, the petitioner was an advocate practising in Calcutta High Court and also in the Supreme Court. The Supreme Court Advocates (Practice in High Courts) Act, 1951 is the Act that authorizes advocates of the Supreme Court with the right to practice in any High Court. When he wanted to appear before Calcutta High Court and act for his client, he could not as the High Court Rules and Orders allowed such an advocate to only plead and not to act. The petitioner argued that as an Advocate of the Supreme Court he had a right to practice, which included the right to act as well as to appear and plead, without being instructed by an attorney. This argument of the petitioner was accepted. The Supreme Court observed that the enactment has an overriding effect over any law that is mentioned in the non-obstante clause if it is inconsistent. Where both laws cannot be interpreted harmoniously, the enacting law must be given an overriding effect.

The case of Kanwar Raj v. Pramod (1956) dealt with Section 12 of the Administration of Evacuee Property Act, 1950. This Section contains the words “notwithstanding anything contained in any other law for the time being in force the Custodian may terminate any lease, etc.”. In this case, the custodian of an evacuee Property cancelled a lease granted by him, under Section 12 of the Administration of Evacuee Property Act. It was argued that the power of the custodian to cancel leases could be exercised only in a manner that it overrides a restriction imposed by any other law in force, but not the terms in the contract under which the lease is granted. It was held that this power of the custodian was absolute and unqualified.

We can find a non-obstante clause in Section 32A of the Narcotіcs Drugs and Psychotropіc Substances Act, 1958 as well. As per this Section, “notwіthstandіng anythіng contaіned іn the Code of Crіmіnal Procedure, 1973 or any other law for the tіme beіng іn force no sentence awarded under thіs Act shall be suspended or remіtted or commuted”. In the case of Maktool Sіngh v. State of Punjab (1999), a question arose as to whether the Hіgh Court could exercіse іts powers of suspendіng the sentence as granted under Sectіon 389 of Chapter XXІX of the Code of Criminal Procedure. The Supreme Court held that the High Court does not have the power to suspend the sentence awarded under the NDPS Act.

Conclusion

To sum up, non-obstante clauses are one of the internal aids present for interpreting a statute which helps with interpreting two or more laws associated in regards to the same field which appears to be conflicting. It is used by the legislature to give an overriding effect to a new provision that could potentially clash with another law. However, it is to be noted that this overriding effect happens when the provisions cannot be interpreted harmoniously at all. A non-obstante clause does not in any way repeal or discontinue any law that is carried by it.

References

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Indigo Airlines fake jobs fraud : case study

By

Sneha Mahawar

-

March 15, 2022

0

This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a case study of jobs fraud by the Indigo Airlines where certain individuals purporting to represent the airline are exploiting the brand name and the names of Indigo personnel in order to get money in return for conducting interviews, giving positions, or providing training.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

The Indigo Airlines jobs fraud case was a well-organised racket that majorly operated in the year 2021 thereby deceiving several job applicants interested to work with the prestigious Indigo Airlines. Although whether the racket continues to exist or not does not have a piece of underlying evidence as such fraud activities continue to exist all across the globe. Employment scams are a common offence that preys for innocent job seekers who easily fall in the trap laid down by fraudsters. This article not only discusses the jobs fraud racket that operated by the name of Indigo Airlines but also provides its readers with adequate information surrounding rising employment scams and possible ways to defend the same.

Fraud job calls : an alarming danger

There are more fake postings than ever before as the internet arena expands on a daily basis. The majority of us can recognize a fraudulent job posting when we see one. However, there are a sizable number of people that fall for them; hook, line, and sinker. As a result, organisations occasionally issue warnings to job searchers about such advertising. Job fraud has become more common as the internet realm has grown, according to job-search businesses. To escape discovery, many employment scammers employ complex techniques. With the rise of internet transactions, it’s becoming easier for consumers to be duped by fraud employment offers. Fraudsters frequently exploit the names of well-known employment sites to deceive people, so we must be quite mindful of how these things function.

Fake employment rackets have exploded in popularity, due to dwindling work opportunities in the commercial and public sectors, as well as a flood of students graduating from low-quality professional schools. As the globe goes towards automation, the growth of employment rackets in India is linked to a decrease in professions needing poor technical skills. Racketeers have stretched their tentacles far and wide, from promising positions in the military forces and railroads to getting you placed in prominent IT businesses like Wipro, Infosys, Tech Mahindra, and TCS. As the internet becomes more widely available in the country, it becomes a helpful tool for criminals to misrepresent themselves through phoney websites and emails. Desperation among youth makes them easy prey for work rackets as they constantly compete for fewer private and government employment.

How do fraud job rackets function?

The different ways in which fraud job rackets function and successfully deceive innocent job seekers are discussed hereunder.

Exploiting the brand appeal

With private-sector hiring sliding downwards in recent years, jobs at large corporations are in high demand. Working with TCS or Wipro or say for instead Indigo Airlines entails not just employment but also a great deal of prestige. The attraction of famous brands is exploited by job swindlers. The majority of work rackets rely on well-known brands to entice young people most belonging from developing regions and even on the outskirts of major cities. The racketeers usually accept money from job seekers and occasionally even send out false offer letters on fake letterheads to the candidates. A similar kind of situation had taken over the prestigious brand of Indigo Airlines.

In June 2018, Hyderabad police detained three individuals who had been operating two fictitious firms for over three months, namely, Arkon Technologies in Somajiguda and Propel Technologies in Madhapur, and taking Rs 2 lakh from each candidate. While one of the accused used to represent himself as the managing director of Propel Technologies, another worked for both Propel and Arkon as the head of HR.

The fraud job racket that operated by the name of Indigo Airlines successfully collected money by fraudulent means from several job seekers only because the brand name of Indigo Airlines had earned immense goodwill for over several years.

Phishing at reputed job portals

Another method of defrauding job searchers is through reputable employment platforms, where racketeers collect personal information from job seekers and then abuse them. They compile a database of sensitive personal data on unknowing individuals, which might be badly exploited later. Three guys were detained in June 2018 in Ghaziabad’s Kavi Nagar for allegedly defrauding many job applicants out of Rs 3.5 crore over the previous two years. The ringleader posed as a representative of fictional firms such as Idea International and Entomace Technology India Pvt Ltd on Naukri.com and advertised employment. He would gather personal information from candidates who applied for such positions. He would afterward give them fraud interview letters from well-known companies. He urged the candidates to pay for the interviews using Paytm so that they could get the jobs.

Taking this concern into account, several well-known dignitaries of Indigo Airlines had repeatedly made it clear to job applicants that they only hire individuals who apply directly through their websites and not in any other form. An understanding of the same has been provided in the latter part of this article.

Fake/false websites

Another tactic is to establish false company websites that candidates may visit to verify the ‘genuineness’ of the employment being offered. These crooks even set up fake social media accounts in the names of these fictional businesses. Candidates registering on these websites give the racketeers access to their personal data. They not only offer false jobs on these websites, but they also administer exams, post the results, and charge the ‘successful candidates’ for passing the interview.

Fake consultants

Some fraud artists act as fraud career advisors and charge high fees in exchange for promises of positions in reputable corporations and government agencies. A few years ago, Noida police apprehended a guy who posed as a phoney employment adviser with the aid of three accomplices, one of them, a former employee of a reputable job portal, had allegedly stolen the personal information of over 3,000 job searchers. They would call the youth, offer them work in private companies all throughout the NCR region, and ask them to pay in installments. He had hired a well-furnished office in Sector 72 for Rs 40,000 per month, where he would meet with the hopefuls. The accused and his associates would collect Rs 1,600 as a registration fee from the youngsters, followed by Rs 5,000 for document verification and Rs 10,000 for the appointment letter.

Racket all the way

To look authentic, some racketeers will go to any extent. They won’t stop at obtaining a forged job letter for you. They will force you to take the position, train you, and even put money in your account for a few months. The CBI nabbed eight people in July 2018 who were involved in a railway recruitment fraud. To acquire a job, they used to demand payment of Rs 3 to 5 lakh. They had constructed a website that looked suspiciously like the Railway Recruitment Board. They held fraudulent recruiting exams and even published the results on a fake website. Even medical fitness certifications from a government hospital were required of the candidates. Racketeers interviewed and trained individuals in a modified office of a lower-rung employee at Lucknow’s Charbagh railway station. They were assigned to a variety of tasks at the train station. In the same month, Delhi police broke another railway employment ring, in which the ringleaders eventually gave the ‘trainees’ a two-month pay.

Lookalike website

Racketeers imitate reputable corporations or government bodies by creating websites with deceptively identical domain names. Telangana police d etained three persons four years ago for defrauding job seekers by building a false website for a government organisation, Telangana Agro Development Corporation, on which they welcomed employment applications under several categories. The candidates were charged for the application forms and processing.

Fake campus placement

It’s possible that even on-campus placement is a ruse. Racketeers had once defrauded an engineering institution in Odisha, more than 300 students received fake job offers as a result of the racketeers’ deception of the college officials during a fake campus recruiting campaign. They forged employment offers from Huawei, Mitsubishi, and Ircon International, among others. When students proceeded to apply for jobs with the firms, they were informed that the offer was a fraud in itself.

How to locate a fraud job offer?

The onus of locating a fraud job offer lies solely on the shoulders of the job applicant. Even before raising issues concerning the company offering fraud jobs in demand for money or any sensitive personal information, the job applicant must be well-acknowledged with the place he or she is applying to.

Click and tell

Verify the validity of the mailer by verifying the strings marked “Mailed by” and “Signed by” at the top of the email by clicking on the “display details” option near the top of the email. Those that are affiliated with a legitimate recruiting platform will always have the platform’s credentials in these categories.

Get those details

A legitimate recruiting platform will be able to supply enough information about itself. If a consultant contacts you about a job opening, request that they provide you an email containing the company’s logo, contact information, and official website.

Watch the conversation

If you have applied for a position, only legitimate recruiters and consultants will contact you. Furthermore, the chat will be entirely focused on your history, experience, and abilities. Certainly, there will be no demand for money.

Report them

Report the consultant or recruiter to the platform with which they claim to be affiliated if they push you to pay for services in which you have shown no interest.

Laws governing employment scams

The Infor mation Technology Act, 2000 (IT Act), as well as the Indian Penal Code of 1860, prohibit a variety of cybercrimes in order to safeguard citizens and deter cyber fraudsters from committing such crimes. The individual who has been wronged should file a police complaint for registration of the First Information Report (FIR) as soon as possible. The offended party can also register a complaint with the Cyber Cell of the relevant jurisdiction, informing them about the cybercrime, among other things. The National Cyber Crime Reporting Portal can be used to file the complaint.

Information Technology Act, 2000

The Information Technology Act, 2000 has been key legislation in governing cyber crimes in India. Some of the notable provisions that one needs to be aware of in this respect are discussed hereunder:

Sections 43 and 66

Hacking into a computer network, data theft, introducing and spreading viruses through computer networks, damaging computers, computer networks, or computer programmes, disrupting any computer, computer system, or computer network, denying an authorised personnel access to a computer or computer network, damaging or destroying information residing in a computer, and so on are all prohibited under Sections 43 and 66 of the IT Act. The maximum penalty for the aforesaid offences is 3 years in jail or a fine of Rs. 5,00,000, or both.

Section 66C

Identity theft is punishable under Section 66C of the IT Act, which states that anyone who fraudulently or dishonestly uses another person’s electronic signature, password, or other unique identification feature shall be punished with imprisonment of either description for a term that may extend to 3 years, as well as a fine of up to Rs. 1,00,000.

Indian Penal Code, 1860

The four important provisions that can be invoked to shield against employment scams are provided hereunder:

Section 378

As Section 22 of the IPC states that the words ‘movable property’ are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything attached to the earth, Section 378 of the IPC, which deals with ‘theft of movable property’, will apply to the theft of any data, online or otherwise. The maximum penalty for theft under Section 378 of the IPC is three years in jail or a fine, or both.

Section 411

Punishment for dishonestly receiving stolen property and is worded in a manner that is almost identical to Section 66B of the IT Act. The punishment under Section 411 of the IPC is imprisonment of either description for a term of up to 3 (three) years or with a fine, or with both.

Section 424

This provision will be applicable to data theft. Section 424 prescribes a maximum penalty of up to 2 years in jail, a fine, or both.

Section 463

The making of a false document or part thereof with the intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with the intent to commit fraud or that fraud may be committed, is defined as forgery under Section 463 of the IPC.

Indigo Airlines fake jobs fraud : an insight

On 2nd February 2021, Indigo Airlines, the country’s largest airline, warned customers against fake job offers made in its name and recommended them to report anybody who begs for money and promises a position at the carrier to the authorities. The Delhi Police have arrested 12 people on charges of defrauding hundreds of job applicants by offering them jobs with Indigo Airlines. The accused obtained data on the targeted persons from the ‘Quikr Jobs‘ recruitment portal.

How does a fraud job offer functions with respect to Indigo Airlines?

Raj Raghavan, Senior Vice President and Head of Human Resources at Indigo Airlines while getting interviewed by CNBC-TV18 had stated that they have been witnessing fraud job offer incidents for several months, notably when the initial lockdown ended and they began re-hiring. The method in which the same operates is simple and provided hereunder:

Someone posts a fake job on an online portal like Quikr or OLX,
When job seekers contact these perpetrators, they claim to be from Indigo Airlines and demand payments ranging from Rs 500 to Rs 1,50,000 for things like registration fees, security fees, uniform fees, training expenses, joining kit, bond fees, and so on.
They use the Indigo Airlines logo, and on occasion, the Airports Authority logo, at the bottom of the offering letter. They mostly target states in the south and sections of northern India.
Fraudsters have become far more sophisticated, and they now employ technology to their advantage. The problem for HR experts is to be able to convey this consistently and in a way that people can understand when they are getting wronged.
The job seeker in haste and quest for a job and financial security pays the amount asked for with the hope of getting a secured job in the Airlines.

Steps taken by Indigo Airlines to address the fraud

Raj Raghavan has time and again clarified that “Indigo is entirely dedicated towards eliminating frauds perpetrated on innocent job seekers by miscreants posing as corporate personnel.” They have effectively partnered with law enforcement organisations in the previous few years, and they have been really helpful in apprehending these con artists. However, they feel that this may be fully eliminated if gullible job searchers are not taken advantage of. The senior dignitary issued a statement saying, “I’d want to emphasise that Indigo does not charge candidates, and anyone soliciting money from a candidate, no matter how minimal it be, is trying to deceive people.”

While commenting on the measures taken to combat the phoney job offer scam in Indigo Airlines, Ronojoy Dutta, Chief Executive Officer of the airlines stated that they have been cautioning job searchers through awareness efforts via advisories and ads. They feel it is their job as the industry leader to detect and manage such malpractices that affect not just Indigo Airlines but also other firms in the field. The dignitary further stated that they have had previously worked in close partnership with law enforcement agencies to identify these offenders with great success. Therefore, once again with the help of the police department and public awareness, they want to put an end to this threat.

Reachout through social media

Indigo, a low-cost carrier, has issued a warning to anybody interested in working with the firm. The airline has warned candidates to be wary of bogus offers made in the company’s name. In a tweet dated 10th December 2020, Indigo said, “Please be cautious of certain persons claiming to represent Indigo – exploiting the brand name and the names of our workers, demanding money in return for interviews or positions.” The airline has encouraged candidates to be ‘alert and never fall for such frauds’ in a 25-second video clip shared on its official Twitter profile.
Indigo Airlines has launched a social media and internet campaign to raise awareness against fraudulent employment offers. A statement released on October 19, 2021, stated that through its creatives on anti-fake jobs campaign across social media and website, Indigo is raising awareness on how certain people claiming to represent the airline are misusing the brand name and the names of Indigo employees, and demanding money in exchange for conducting interviews, providing jobs, or imparting training. It further said that the airline does not charge for conducting interviews or providing training to new employees. If someone asks for money and offers a position at Indigo, the problem must be reported to the police right away. In addition, the airline is taking necessary action in incidents that are reported.

Addressing awareness among employees and the general public through emails

Various steps that Indigo Airlines has taken to spread awareness about fake job offers are provided hereunder:

Frequent emails from the HR leader to all employees informing them and seeking support to spread awareness,
Placement of ‘caution’ posters/standees at key locations at all airports,
‘Caution’ standee placement during hiring drives at all locations, and weekly/fortnightly posts on Indigo’s official social media channels (Twitter, Facebook, LinkedIn).

Collaboration with different job portals

The airline is working with a number of employment boards to raise awareness about fraud job listings. In addition, material for virtual and physical interviews has been developed to warn candidates about these job offers. On the front page of the airline’s official job website, there is also a ‘warning’ message available.

Reaching out to the consumer complaints addressed on fraud grounds

Here is an example of one of the victims of the Indigo Airlines jobs fraud case and what he had to bear within the process. The role of Indigo Airlines in acknowledging the issue has been discussed hereunder as well:

An individual from Ajmer, Rajasthan had lodged a complaint before the Indian Consumer Complaint Forum stating that on his email address he had received an email about airport employment openings. In that email, the entire job description, as well as the phone number for the contact person, were provided.
Raj Malhotra was the one who answered the phone and explained the recruiting procedure to the person when he carried out the directions in the mail. Mr Malhotra had provided the complaint with an email address of the HR of Indigo Airlines and had instructed him to send his paperwork to that address.
Upon uploading the same, the complainant had received an email from Indigo Airlines informing him that based on his documents, he had been selected for an interview. The mail further stated that the reference ID and interview question-answer sheet would be sent to the complainant upon him paying an amount of Rs 2500. The bank account details were also provided.
Upon payment, the complainant was interviewed over telephone by a lady alleged to be an employer of Indigo Airlines.
The following day, the complainant had received a call from the verification department of the airline, when a person recognized by the name of Amit Agarwal had asked the complainant to deposit another 7500 rupees (refundable) for the security deposit.
After depositing a total of Rs 10,000, the complainant had received an offer letter from Indigo Airlines.
The next day Mr. Agarwal had again called the complainant and had told him to deposit a sum of Rs 10,000 (refundable) again for the current account opening as a security deposit. This was when the complainant had approached the consumer forum.

The Indigo Customer Care had responded to the alleged complaint in the following ways:

The Airlines clarified that they do not engage in any unauthorised person or mediator to secure an appointment of a candidate who is willing to join in a position at Indigo.
The Airlines had further clarified that all appointment and recruitment-related work are handled by genuine and authorised officials of the Human Resource Department of Indigo at its Gurgaon office or any location officially designated by authorised officials of Indigo.
The Airlines made it clear that they do not indulge in the practices of collecting any processing/ enrollment fees from job aspirants/candidates.
They further suggested the complainant visit their Careers website and upload his resume there. The Airline also assured that if the complainant’s resume gets shortlisted, he will be contacted by Indigo’s recruitment team.

The do’s and don’ts with respect to Indigo Airlines fraud job offers

The factors one should be mindful of with respect to the fraud racket tarnishing the brand of Indigo Airlines:

Ask questions to have a better understanding of the job role and Indigo’s work culture.
Make sure you get an interview confirmation email from the recruiter you spoke with and make sure the email doesn’t include any fees or costs.
Ensure that any communication regarding the selection and offer comes from the official Indigo email address ([email protected]).
Be alert to notice fake appointment letters:

Does not have an authentic signature.
Has tampered with the Indigo logo and images.

The list of don’ts that a job applicant should be aware of are provided hereunder:

Do not pay any fee for interview registration, the application process, uniform, etc.
Do not be fooled by an interview procedure that purports to pick candidates based solely on telephone discussions and no face-to-face meetings.
Do not pay any fee for offer confirmation, any training charges, or joining deposits.
Do not accept any offer or selection confirmation email basis interviews only through telephonic medium and without any face-to-face meeting.

How to protect yourself from employment scams in India

Approaching the state actors

First and foremost, you should lodge a police report at your local police station. The police station has a cyber cell that specialises in dealing with offences of cyber fraud. You have the option of submitting your complaint through email or a letter as well.

If the address of the company is known to you then you can move legally too in the following ways

Start a social campaign: Begin a social media campaign in opposition to the fraud job consultancy. Not only will posting on social media publicly disgrace the firm, but it will also alert others to the fact that it is a fraud.
Send a legal notice: A legal notice can be sent to the concerned job consultancy responsible for carrying out the fraud. Certain scammers will lose confidence as a result of the legal notification, and they will panic and hand up all of the money they have stolen, to you. You can hire any skilled advocate or lawyer to prepare and submit this legal notice to the firm.
File a case in the consumer forum: If you have not received a response from the employment firm after issuing a legal notice, you could file a complaint with the consumer court having jurisdiction to try the complaint.

Steps that will help you recover your money

Here are 7 steps that will help you recover the money that you have lost over fraud job rackets:

To track down the IP address from which you got the scam email, file a complaint with the Cyber Crime Cell.
Fill out a Customer Dispute Resolution Form and submit it to the bank where you transferred the funds.
Make a report to the bank where you sent the money and where the scammer maintains an account.
File a complaint with the Adjudicating Officer under the Information Technology Act, 2000 against the bank where the scammer’s bank account is active, as well as make the IP address a party so the court can order a tracing of the address.
Your complaint will be investigated further by the court, and the case will be heard and determined within 6 to 9 months.
The Information Technology (Qualification and Experience of Adjudicating Officers and Manner of Holding Enquiry) Rules, 2003 should be followed while filing a complaint.
The application charge for submitting a complaint is Rs. 50, and a court fee is required based on the amount of the claim.

Conclusion

In India, job scams or fraud are fairly widespread. As a result, when looking for employment online, one should always be cautious and avoid paying any money to join, as any legitimate job firm would not do so. However, there are several telltale symptoms of employment fraud. Some of them include requests for money in advance, requests for your bank account information, amateurish emails with multiple grammatical problems, and a lack of information about the firm on the internet, among others. As a result, if you’re looking for work online and come across any of the above-mentioned choices, you should definitely avoid them and hunt for anything else.

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.

The perils of legally defining disinformation

By

Sneha Mahawar

-

March 15, 2022

0

This article is written by Preetham Kumar pursuing MBA with a Specialisation in Data Protection and Privacy Management from the Swiss School of Management. This article has been edited by Zigishu(Associate, Lawsikho).

This article has been published by Sneha Mahawar.

Table of Contents

Information, as an intangible business investment

‘Information’ can do what an exponential factor can. Just as an exponent exemplifies a number, information can champion that too, except that information is not about numbers, but about ‘interpretation of data.’ In many ways, information can set out to create a chain reaction potentially impacting many social spheres in an instant. When coupled with a concept, it becomes influential in the social spectrum. Economy and Democracy – the two pillars of the modern world, which are progressing because of advancements in technology, globalization, and other political sciences, are also heavily influenced by the type of information presented on different platforms. Information, therefore, inextricably overlaps with areas of business, finance, and society at large. One cannot exist without the other.

A short analysis on why credulous data is hard to mine

When data clusters are mined, people are essentially looking to output information patterns that eventually give out insights. Since these insights are backed by data, they are used in making better and more efficient decisions, establishing statistics, and most importantly, becoming ‘the latest known thing’ – a trend. This happens in all known spheres – Social, Economic, and Political. . Since ‘Information’ is recognized as an indispensable ‘power’ in different forms, people often try to make it up.

The right kind of information is true, is factual, and hard to find. It is also expensive. For instance, technological research and consulting firms such as Gartner and Forrester invest thousands of dollars only to mine actionable insights from data. They are also keen on investing millions of dollars in data-driven SaaS platforms designed primarily that cater to data-driven markets and business intelligence. The information that they make available is viewed as a benchmark in many other industries, especially in businesses that set aside at least 15% of their budget into marketing and business fluidity. In another scenario, News and Journalism networks also rely heavily on authentic data to be aired. More than 50% of their budget is spent on hiring talent that can mine authentic news – information which is true, based on facts/merits, likely to happen, live streaming, varied sources that cover all aspects, and so on. The same goes with Publishers and Inventory owners. Before an article even gets published, there are interviews to cover all sides of the story (because it adds to the authenticity), there is data and statistics backing the survey numbers, and other information that gets aired or published. This meticulous work and investment are what give credibility to the information published globally. Given all this, it is clear that the ‘information market’ requires a certain skill set, investment, intelligence, which makes it hard for someone operating on a low budget to get hold of quality data. A lot of them, therefore, choose alternatives to ‘make-up’ data and information which obviously would not be reliable and credulous.

Defining dis-information

The information represents a particular arrangement or sequence of things. These become very subjective in many ways although it is backed by facts provided or learned about something or someone. ‘Subjective’ leaves room for ‘incomplete information’ fracturing the ‘uniqueness’ that any ‘information’ is originally set out to be. It loses its viewability like a tumbling pack of cards. This is widely known as ‘information disorder’ in the field.

This disorder can manifest in different forms. Sometimes they are done with an intent to cause harm, and others, are simply done to gain attention but no harm. Sometimes, information that is restricted is made public without authorization, or sometimes dummy information is sent out to create noise or divergence. Whatever the disorder, defining it clearly (without leaving room for doubts) helps estimate the gravitas and predicament of the situation.

Dis-information is when false information is knowingly shared to cause harm.
Mis-information is when false information is shared, but no harm is meant.
Mal-information is when genuine information is shared to cause harm, often by moving information designed to stay private into the public sphere’

As observed, it’s pretty clear that the predicament of information disorder depends on the analysis and employment of the following four elements.

The veracity or the misleading nature of the information
Was it disseminated with a specific intention?
Was the intent to target a specific set of audience – social harm?
Economic gain

Disinformation in the legal scope – a gambit to ‘prevent’ than to ‘sustain’

Other than the traditional way of finding data (as analyzed in the above section), we often witness influencers (politicians, CXOs, Directors, etc.) make candid statements that often attract all kinds of criticism. The criticism usually comes when the statement is anticipated in a tense or a decisive moment within the ambit of related events – election results, national financial budget, stock market trends, social image, outcomes of landmark events and cases, news channel debates, and so on. An influencer is often viewed as someone who promotes an idea or a belief (an opinion that is biased) to a larger audience. Every statement is in one way or the other information reaching out to hundreds, if not thousands, of audiences. Sometimes they change mass perceptions and can pelt something the wrong way resulting in riots or foul play. Therefore, an entity is not at liberty, ethically, to spread false or incomplete information in any scenario. They attract unwanted attention, and obviously have consequences either through public apologies, fines, negative imagery and in the worst case, being charged with criminal intent.

But is false or incomplete information close enough to be legally charged? Given that information was not forced, not against violation of any basic principles guaranteed under the law, and most importantly subjective. The law further explores concepts on proportionality and commonality to assess the extent of damage such disinformation can potentially cause in a scenario. On one hand, the judicial system reviews the intent of the entity that is accused of causing harm or spreading false news, or misrepresenting facts. On the other hand, it inspects if the impact or gravitas was because of a negligent decision taken without due diligence.

Consider a scenario where an investor associated with a well-known brokerage firm makes a statement (through any media source) that a certain market is likely to take a negative hit because of something that’s happening on the borders of two states. He further recommends a strategy of buying and selling stocks. This piece of information had one lakh unique views and almost half of them caved in to this and made their trade. Days pass, and the market reacts differently than what the associate predicted. And as a result, almost fifty thousand people suffer losses on their trade. They blame the associate for making a statement that caused them a loss of this stature. They further accuse him of spreading disinformation and tarnishing the brand image of the well-known firm. The question: will this accusation hold in the court of law when reviewed? The answer is again subjective and will depend on various factors that will primarily assess to find the 4 elements discussed above. If it’s found that there was an intent, and was done to cause harm, then the crime will attract fines and penalties. But otherwise, it will simply remain a case of market risk and negligent trade.

Most information that is not true is put out there to get momentary fame. This is perceived as a crime within the scope of information disorder. Although many scholars argue that this type of incorrect or made-up information is not recognized as ‘illegal,’ it is surely misleading and therefore ‘can be’ harmful – i.e., “need-not-be” but “can-be.”

So, when we revisit the definition of dis-information structured by various global laws, two elements amongst others are primary identifiers –

a) knowingly shared,

b) causing harm. Again, critically analyzing the two identifiers will only make way for more ambiguity.

Perils of inaccuracy under legal review

Digital laws under the Indian Information Technology Act 2000, are the only primary laws in India dealing with cybercrime and electronic commerce. Sadly, they are old, outdated, rigid, and need major amends. What we need today are digital laws that are flexible and open to broader interpretation.

If the law recognizes ‘disinformation’ as false information knowingly shared to cause harm, some may argue around the ambiguity that exists around the term ‘false information.’ Is the legal rule interpreting ‘false by very nature’ or ‘false on verification?’ If the legal interpretation is based on old and outdated laws and is rigid in terms of interpretation, it will simply deem the judicial branch incapable of conducting justice.

No thorough definition and policy around the concept of dis-information will only leave the topic criticized for being too broad and vague to function under the law. Whatever the policy formulation in the future will be, it should stem from perspectives of legal certainty, effectiveness, and freedom of expression.

Our economy is growing by the day, and tons of information is being exchanged internationally at high volumes. The country is no longer viable to lay back in tranquility and harmony envisioning a safe cyber-haven. Information and disinformation are not just domestic issues but have taken on an international context. . Just like how disinformation can cause conundrum nationally, its effects can be felt across borders as well. Therefore, arresting disinformation should start by introducing the concepts of privacy and establishing privacy laws. And since everything is going digital these days, there have to be governing frameworks that will introduce apt digital and privacy laws, with policymakers being experts at everything data and information.

India, being the largest democracy should participate and be a part of the global digital economy. Therefore, it is very important that the Indian Judiciary gets the next bit of legislation in digital reforms very right in terms of its ability to be flexible and evolvable. That said, a country like India, with the largest connected market in the world should not wait until the laws are officially formulated by some other global powerhouse. It’s best to start taking the lead, or in the interim adopt a few digital law structures practiced globally, such as the ones in the EU (European Union, European Commission, and High-level Expert Group).

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Nikah Halala : how a Quranic concept has been corrupted to violate the dignity of women

By

Sneha Mahawar

-

March 14, 2022

0

Dower in Muslim law (Mahr) — Image Source - https://shorturl.at/m1OwY

This article is written by Ifra Jan who is a spokesperson of the J&K National Conference and Omer Ghazi who is a research associate at the Citizens’ Foundation for Policy Solutions (CFPS), a public policy think tank based in New Delhi.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

The Supreme Court striking down unilateral and arbitrary triple talaq, a practice that left women vulnerable, was celebrated as a victory for gender equality in large sections of the Indian society and rightly so as per the authors. Indeed, some Muslim women were the ones who took this matter to the Apex Court, and progressive Muslim men had supported the abrogation of this retrograde practice, as you can see here, here, here, and here. The Supreme Court acknowledged that the practice violated not only Article 14 of the Indian Constitution upholding gender equality but also the tenets of the Quran. Triple talaq, as per the Quran, can be offered over a period of 90 days and that too only after following certain steps laid out in the Quran which include counselling, sleeping separately, citing previous examples of divorce and arbitration by a panel of family members with equal representation from the husband’s side and the wife’s side, as enunciated in verses 4:34 and 4:35. It is true that verses 4:34 and 4:35 of the Quran do not explicitly mention their mandate in the context of divorce. That said since talaq is from the husband’s side (unlike khaula, which is from the wife’s side), the steps are given in verses 4:34 and 4:35 become relevant, and the supposed reference to wife-beating in verse 4:34 is taken by many to be a mistranslation, as discussed here and here. Besides, since verses 65:1-6 of the Quran in the context of divorce clearly oppose ruthless desertion of one’s wife and verse 2:229 talks of reasonable settlement with the woman, there is genuine compatibility with verse 4:35.

Since this bold initiative was taken by some Muslim women to claim their equal rights as Indian citizens in accordance with Article 14 of our Constitution, other sexist practices among Muslims have also been challenged (we will touch upon other religious groupings in India subsequently), and one of them, Nikah Halala, is the subject of this article.

What is Nikah Halala and is it mandated by the Quran or Quotations of Prophet Muhammad (Peace Be Upon Him)

As per verse 2:230 in the Quran, a woman can reunite with her husband on being divorced twice but on the third occasion, she cannot reunite with her husband except after undergoing a marriage with another man and him passing away or entering into a divorce with her. The rationale behind this idea has been explained by writer Ziya us Salam in the following words-

“This verse has to be seen against the backdrop of the atmosphere then prevalent in the Arab world. Many men were prone to divorcing their women, then taking them back, and divorcing them again. It had become a game. This process went on innumerable times. The Quran put a limit to this: a man could only divorce his wife two times. If he did so for the third time, he could not have her back, and she was free to marry any man she chose.”

However, this concept has been perverted and distorted by many Muslim clerics to contend that women seeking to reunite with their husbands can have temporary marriages or practically, paid one-night stands (as also exposed by several media houses, as you can see here in the Indian Muslim context and here in the context of South Asian-origin Muslim communities in England), and then get divorced from their new ‘husbands’ to reunite with their earlier ones (thus supposedly making the original marriage halal or valid again, and the temporary marriage for doing so, therefore, described as nikah halala, a term nowhere found in the Quran), which is clearly violative of women’s dignity and disgraceful for a 21^st century society. In fact, Prophet Muhammad (Peace Be Upon Him) had clearly prohibited such an idea, in the following words-

“Curse be upon the one who marries a divorced woman with the intention of making her lawful for her former husband and upon the one for whom she is made lawful.”

(Abu Dawud, Book 005, Hadith Number 2071, narrated by Ali Ibn Abu Talib)

Views on Nikah Halala

As a Muslim commentator, Safiyat Naseem seeking to uphold the spirit of the Quran and Hadiths puts it–

“The unsavoury practice of halala is a dark manifestation of toxic male entitlement and perpetuation of patriarchal ethos where women are considered second-class citizens.”

Two other such Muslim commentators, Sadaf Ayub Chaudhary and Iqra Saif Agha have argued–

“Unquestionably, the practice of halala also takes away the freedom of choice from the women and reduces their existence to merely being an object that is owned by one man and then the other. The deserted wife’s feelings, as well as consent, are totally disregarded as to whether or not she actually wants to marry another person, consummate the marriage and then remarry the previous husband. The woman’s sentiments are drowned by the attempts to gratify the needs of the men she gets married to or to save the ‘izzat’ of the family. This just goes on to show how easy it is for men to manipulate the law according to their own needs and dictate what women ought to do and rectify the situations, by sacrificing their dignity, caused by the men themselves.”

Describing nikah halala as a practice “invented by sexual perverts”, commentator Aslam Abdullah says–

“How religious and dedicated these holy men are to God who would not mind sleeping with the wife of someone else who wrongfully uttered the most dreaded words in the Muslim family system and how caring they are to divest their holy energy in keeping the spirit of the faith alive?

Even though the Prophet described those who perform halala and enforce it the worst of human beings, yet the practice is performed in the name of God by those who claim to follow the Qur’an and the messenger who introduced them to the Qur’an.

It is an inhumane practice and has nothing to do with divine guidance. It is barbaric and rooted in ideas that treat women as nothing but as an object of sexual pleasure. The persistence of this practice in Muslim society speaks of the corruption that is prevalent in religious circles.

Halala is non-Islamic and it should never be associated with the divine guidance because it is the antithesis of human decency and divine grace.”

Several Muslim clerics have also opposed this abhorrent practice. “This is lust. It’s not permissible in Islam. This is a criminal offence committed in the name of religion,” says Maulana Maqsood-ul-Hasan Qasmi, the head of the Imam Council of India. “These people should be thrown out of the mosques. They should be booked.” Maulana Ansar Raza of the Gharib Nawaz Foundation called for the immediate ex-communication of religious scholars offering themselves for nikah halala. “They should be (…) thrown out of mosques. They should be charged with rape. Nikah halala is a regressive un-Islamic practice,” he said.
Businessman Zafar Sareshwala, who has chancellor of the Maulana Azad National Urdu University (MANUU), Hyderabad, has a similar view. “These people should be put in jail and charged with rape,” he said, demanding strong action against men participating in nikah halala for one-night stands.
In England, the Islamic Sharia Council in East London, which regularly advises women on issues around divorce, strongly condemns halala marriages. “This is a sham marriage, it is about making money and abusing vulnerable people,” says Khola Hasan from the organisation. “It’s haram, it’s forbidden. There’s no stronger word I can use. There are other options, like getting help or counselling. We would not allow anyone to go through with that. You do not need halala, no matter what,” she adds.

The practice is sought to be legally prevented even in Pakistan, though it still persists, with even the courts unfortunately not always rejecting it outright. However, the All India Muslim Personal Law Board (AIMPLB), a largely regressive organisation that seeks to act as a self-appointed custodian of matters pertaining to Indian Muslims (though vehemently rejected by very many Indian Muslims), has opposed the banning of nikah halala (a practice violating the letter of the Quran and Hadiths, even if they don’t very well understand Indian constitutional law or international human rights law) in India, though even it has conceded that the practice should be discouraged. Without seeking to diagnose the surrounding politics, the authors would also say that it is only appropriate that the central government has sought to support its abolition in the Supreme Court.

Conclusion

The argument that blatantly sexist practices in the realm of family law violating the rights of Indian women under the Constitution should be allowed to continue till the patriarchal elements of a community agree to disown them is neither legally valid nor fair to the victims of such practices. The authors indeed wholeheartedly express solidarity with liberal and moderate Muslims, especially Muslim women, facing threats (as you can see here, here, here, and here) and even actual atrocities, while combating such social evils.

Equally, and in fact, in the same spirit, the authors would emphasise that such practices should not be invoked for communal polarisation to stigmatise Muslims or even practising Muslims, very many of whom outright reject such practices as un-Islamic and inconsistent with human rights. Indeed, there have been and still are issues with the personal laws of other religions as well, as you can see here, here, here, here, here, and here.

The authors earnestly support efforts in the direction of all religions being interpreted in consistency with the values enshrined in the Universal Declaration of Human Rights (UDHR), including no violence against people for their peacefully held religious or non-religious views, and women get their equal space under the sun in India and elsewhere globally.

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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Hike in trademark registrations : last 75 years vs. 5 years

By

Rachit Garg

-

March 14, 2022

0

This article has been written by Adv. Rashi Chandok, working with QuickCompany. It gives an overview of the concept of trademark and the registration process followed, addressing the reasons for a hike in trademark registration.

It has been published by Rachit Garg.

Introduction

In order to understand the word “Trademark”, it can be divided into two parts i.e. “trade” and “mark”. It means a mark used to identify a trade or a brand. Trademarks date back to 3000 years ago when Indian craftsmen and artisans used to carve their signature or a particular mark on their items to differentiate them from the competition.

The Barber’s pole, which used to designate the location of a company, was one of the greatest examples of both ancient and modern trademark usage. In medieval England, sword manufacturers were compelled to employ identification markings to trace faulty weapons back to the manufacturer for possible punishment.

Before the enactment of statutory law, trademarks prevailed as common law marks. The need for a law on trademark registration and protection against infringement was recognized, giving scope for the first statutory enactment in Britain in 1875.

India adopted the British Trademark Act of 1938 and drafted the first Trademark Act of 1940. The Trade & Merchandise Mark Act, 1958 was drafted by independent India. The Act is currently known as the Trademark Act of 1999 (hereinafter referred to as “the Act”), and it went into effect on December 30, 1999.

What is a Trademark?

“Trademark” is intellectual property in the form of a word, logo, design, or expression that helps differentiate one product or service from another and identify the source of the same.

Trademark Registration is a very important step in order to protect the brand name. However, It is not mandatory to register a trademark.

A registered trademark prohibits others from utilizing a company’s or an individual’s product or service without authorization. They also restrict any markings that may be confused with an existing one. This implies that a company can’t use a symbol or brand name that looks or sounds similar to, or has a similar meaning to, one that’s already registered—especially if the products or services are connected.

Benefits of Trademark Registration

Trademark Registration is beneficial for every brand owner. The benefits are as follows:

Protects investment in Advertising & Branding
Trademark Registrations is an Asset
Trademark Registrations is valid for 10 Years
Protects against unfair competition
Exclusive Rights
Legal Right to Use the ® Symbol
Safeguard Against Infringement

Who is eligible for a Trademark Registration

Any individual or an organization is eligible to register a trademark for its product or service. To discuss in detail, here is the list of organizations that are eligible to trademark business names, and it is as follows:

A Proprietorship firm

A sole proprietorship firm is not a distinct legal body, and the individual who operates the business is entirely liable for its obligations. It is one of the simplest business formats in terms of cost, degree of upkeep, and setup. As a result, a proprietorship firm can file a trademark application on its proprietor’s name but not both the business and proprietorship names. If you offer a proprietorship name and a business name in your application, those data will be reviewed separately.

Partnership firm

A partnership firm is created when two or more persons manage a business together as partners with the goal of obtaining profits that are equitably divided or as specified in their agreements, as governed by the Indian Partnership Act. A partnership corporation must include all of the names of the partners in the application when filing for a trademark, with a maximum of ten. If a minor partner is present, must mention the name of the minor’s guardian.

A company

It includes all types of companies like a public company, a private company, or any other type of company. It should be emphasized that each incorporated business has its own identity hence a company’s director cannot be a trademark applicant. Therefore, the director is the authorized signatory in the trademark application of a company.

Charitable society or trust

Trust or Society organizations are those that are formed with the goal of providing a social benefit rather than profit. Suppose it is founded based on a formal agreement in which a beneficiary retains the property and nominates trustees to govern the assets and activities. In that case, it is referred to as a trust. If a group of people gets together to achieve a common goal, it might be registered as a Society.

Both a Trust and a Society can register a trademark as long as it is done on behalf of the Trust or Society. The names of the Chairman, Managing Trustee, and Secretary are included in the application.

Joint owners

A company’s joint proprietors can apply for a trademark together, and both of their names must be listed in the application.

An individual

Individuals who desire to register their own unique phrases or symbols may do so under their own names. However, they are not required to do business.

Only organizations that have registered their trademarks may originate, establish, and defend their commodities, services, and products, preventing others from using their mark illegally.

Types of Trademarks

Words marks

Trademark a name is one of the most common types of trademarks that can be registered. It helps in creating a brand name for any product or service. If the product or service name is in the word form then it will be registered under “Word Mark”. For example Flipkart, Parle-G, etc.

Service marks

The trademarks registered under this represent a service provided by a company or an organization in the market. Service marks can be registered under classes 35-45 of the Act. For instance: FedEx, etc.

Shape marks

Shape marks are also termed as “Trade dress” (shape of the product), The commercial appearance and feel of a product or service that identifies and differentiates the source of the product or service is referred to as trade dress. It encompasses the different aspects (such as material design and form) used to package a product or service.

Logos and symbols

Logos and symbols are also known as Device marks. It is a type of mark that is used for the purpose of marketing a product or a service. The logo must be elaborate or informative. It must, however, be unique in order to identify the goods and services supplied under the mark.

Collective marks

If a mark represents a group of people or service collectively it is called a “Collective Mark”. Generally, this type of mark is owned by one organization but used by a group of individuals associated with it.

Series Marks

If the trademark sought is in the form of a series In other words, the principal element of a mark may be used/intended to be used by the proprietor in numerous forms/ways, and instead of filing individual applications for each, they can be filed as a series. For example, McDonald’s has the “Mc” prefix almost with every product.

The Certification mark

It is a type of mark that provides a quality or standard check that the organization has achieved its product or service. The mark helps people identify a certified product or service. Therefore, a certification mark is used to define “Quality Standard” for a product or service.

Geographical Indicators

A geographical indication (GI) is a label placed on items that have a particular geographic origin and have traits or a reputation that arise from that origin. A sign must identify a product as coming from a certain location in order to operate as a GI.

How to trademark a name

Now, the importance of Trademark is not unknown to everyone; we shall understand the process of Trademark Registration. There are certain steps to keep in my mind while doing a Trademark Registration:

Step 1: Trademark Search

The first essential step is to do a “Trademark Search”. It is very important to perform this step before proceeding any further. So let’s begin by understanding how to do a Trademark Search. You can visit QuickCompany.in or a website that has a Trademark database.

While performing a Trademark Search it is important to keep in mind that no similar word must be registered under the same class you want to register your brand.

Step 2: Trademark Filing

The second step involves filing a trademark application. To make sure your application is complete and as per the requirements of the trademark office, it is advisable to consult an expert like QuickCompany.

After completing a trademark search, an application for trademark registration can be submitted with the Trademark Registrar. The following information must be included in a trademark registration application:

The Trademark or the Logo
The trademark owner’s name and address
Classification or Trademark Class
Since that time, the trademark has been used.
Product or service description

Step 3: Allotted Trademark Application

The two methods for filing the application are manual filing and e-filing (form TM-A). If you select ‘manual filing,’ you must personally transport and hand over your application for registration to the Registrar Office of Trademarks in major Indian cities such as Delhi, Mumbai, Kolkata, Ahmedabad, and Chennai.

Following that, you must wait at least 15 -20 days to receive the acknowledgment. In the event of an e-filing system, however, you will obtain your receipt of acknowledgment on the government website immediately. You will be able to use your Trademark (TM) symbol alongside your brand name after you have received your acknowledgment.

Step 4: Vienna Codification

The Vienna Categorization, often known as the Vienna Codification, is an international classification of figurative features of marks created by the Vienna Agreement (1973).

Once the trademark registration application is filed, the Trademark Registrar will classify the trademark using the Vienna Classification based on the figurative aspects of the mark. While this work is being done, the trademark application status is normally “Sent for Vienna Codification.”

Step 5: Trademark Examination

After Vienna Codification, the trademark officer examines or reviews your application and thereafter issues a trademark examination report. In case of any discrepancies, the officer has the authority to raise an objection or if satisfied with the application he shall allow for trademark journal publication.

Step 6: Trademark Journal Publication (Trademark Register)

Following the examination procedure, the Registrar of Trademarks will publish your brand name in the Indian trademark journal or trademark register. This is perhaps the most crucial aspect of trademark registration, and no objection should be filed within three months, i.e. 90 days (or 120 days in some situations), from the date of publication. If there is no resistance, the Registrar of Trademarks will issue the Trademark Registration Certificate.

If a third party objects to the trademark registration application, the Trademark Hearing Officer will schedule a hearing.

Both the parties i.e. the trademark applicant and the opposing party have the opportunity to attend the hearing and explain why the trademark application should be registered or rejected.

The Trademark Hearing Officer will decide whether the trademark registration application should be approved or refused based on the hearings and evidence submitted. The Trademark Hearing Officer’s judgment can potentially be appealed to the Intellectual Property Appellate Board.

Step 7: Trademark Registration

In case of no objection, the Registrar shall accept the application within a stipulated time period of 90 days or after the trademark objection hearing. Thereafter, a trademark certificate is issued and

Reasons behind the hike in trademark registrations

As per the Senior Examiner of Trademarks, there are numerous factors that led to simplifying the process of trademark registration. The factors are discussed below in detail:

Manpower

According to the reports of the Department for Promotion of Industry and International Trade, a number of trademark examiners were hired on a contractual basis between 2015-2019 to speed up the process.

Digitisation

As per the Summary of Achievements by the office of Controller General of Patents, Designs & Trademarks report, the examination period of a new trademark application was reduced from 13 months to less than 30 days. In addition, a trademark can be registered in less than six months, in case there is no objection or opposition filed.

Digitisation has considerably increased the number of applications being accepted. Earlier, searching for trademarks would take much time, acceptance was minimal. Whereas now everything is online, and other comparable markings may be viewed with the press of a mouse.

New Provisions

A few new provisions were introduced and they are as follows:

The registration procedure was also expedited thanks to regulations enacted in accordance with the Trade Marks (Amendment) Rules 2017. The number of forms, for example, was decreased from 74 to 8.
Using a single application form for all sorts of trademark applications.
Making allowances to startups, individuals, and small businesses.
Inclusion of email as a means of communication.
Limiting the number of hearing adjournments to two.
For online application submission, there is a 10% reduction in the required charge.
Video conferencing for hearings is permitted.
Allowing for quicker trademark prosecution procedure processing.

Startups

To make trademarks more accessible to businesses, the Department for Promotion of Industry and Internal Trade offers a 50 percent discount on statutory costs for submitting applications; as of February 28, 13,703 trademark applications filed by startups have taken advantage of the incentive. 6,353 startups were issued trademarks as a result of this.

Conclusion

It is advisable that trademarks be registered through qualified and experienced third-party trademark agents or trademark attorneys who pass the Trademark Registry’s yearly preliminary tests. Seeking professional help has several advantages. QuickCompany assists with every stage of the registration procedure. They provide free trademark searches on their website.

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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Patent registrations in India and comparison with China and the USA

By

Rachit Garg

-

March 14, 2022

0

This article has been written by Adv. Rashi Chandok, working with QuickCompany. Giving a complete overview of the concept of patent, the article also describes the patent registration procedure in India, in comparison with the procedure in China and the USA.

It has been published by Rachit Garg.

Table of Contents

Introduction to patents

The word ‘patent’ is derived from the Latin word “patere” which means “to lay open” which refers to make available for public inspection. In the current context, a patent is a privilege awarded to anybody who invents anything novel, valuable, and non-obvious. On 20th April 1972, the Patents Act, 1970 and the Patents Rules, 1972 entered into force, replacing the Indian Patents Act and the Designs Act, 1911. In order to strengthen patent law and come in league with the modern world, India became a member of the following foreign agreements and conventions:

Trade-Related Intellectual Property (TRIPS) System,
the Paris Convention,
Paris Cooperation Treaty on 7th December 1998, and
the Budapest Treaty on 17th December 2001.

Latest Amendments

The Government of India recently passed the Patents (Amendment) Rules, 2021, which decreased the charge for patent application and prosecution for academic institutions by 80%. Its main aim is to promote innovation and technological development. Patent registration is mandatory to protect the intellectual property or invention of the inventor.

Points to be noted

Fee reduction for all educational institutions

A few educational institutions are into research activities, and they generate numerous new technologies which have to be patented for the commercialization of the same.
It is to be noted that we must apply the innovations in the name of the educational institution, which has to pay the application fee for a number of applicants. As a result, it is very expensive and serves as a deterrent. Therefore, to promote such applications, they reduced the official fee of the application by 80% as per the Patent Amendment Rules, 2021 for all educational institutions.
Earlier, the reduction was applicable to government-approved educational institutions.

Extension of Expedited Examination System

An expedited examination procedure has been implemented, under which an application for patent award is granted within one year after filing such a request. This service is now available to eight additional types of patent applicants which was initially provided to only Startups.
SME (Small and Medium Enterprises), Female applicants, Government Departments, Institutions created by a Central, Provincial, or State Act, Government Company, an institution fully or largely sponsored by the Government, and applicants under the Patents Prosecution Highway
The Patent Prosecution Highway (PPH) is a collection of initiatives designed to speed up patent prosecution by exchanging information across patent offices.

Note:

Patent Evergreening: It is a corporate, legal, commercial, and technological method for extending/lengthening the life of an issued patent in a jurisdiction that is about to expire in order to keep revenues from them by obtaining new patents.
Section 3(d) of the Indian Patent Act, 1970 (as modified in 2005) prohibits patents from being awarded for inventions involving new forms of a recognised substance unless they differ considerably in effectiveness features.
This implies that the Indian Patent Act does not permit patents to be renewed indefinitely.
Compulsory Licensing (CL) is the government’s issuance of authorization to companies to use, produce, import, or sell a patented innovation without the approval of the patent owner. In India, the Patents Act addresses CL.
CL is permitted under the WTO’s TRIPS (IPR) Agreement provided conditions such as ‘national emergencies, other circumstances of extreme urgency and anti-competitive practices’ are fulfilled.

What is a Patent?

A patent is a kind of intellectual property protection that the government provides to the inventor. It is an exclusive right awarded for an innovation, which is a product or a technique that offers a new way of doing something or an advanced technological solution to a problem.

Technical information concerning the innovation must be shared with the public in a patent application in order to get a patent.

What can be Patented?

There are a few exceptions to patentable items under Sections 3 and 4 of the Indian Patent Act, 1970 (“the Act”). It is important to know the criteria to determine what can be patented, and they are given here below:

Subject Matter is Patentable

First and foremost is determining whether the invention has patentable subject matter. As mentioned above, Sections 3 and 4 of the Act list out non-patentable subject matter; unless the invention falls under these sections, it can be patented.

Novelty

As per Section 2(l) of the Act, the term novelty is defined as any invention or technology that’s not been predicted by publication in any report or used in the country or elsewhere in the world prior to the date of filing of a patent application with complete specification, i.e., the subject matter has not fallen into the public domain or that it does not form part of state of the art. Novelty is an important factor in determining the patentability of an invention.

Inventive step or non-obvious

Section 2(ja) of the Patents Act defines inventive step as “a characteristic of an invention that includes technological advance as compared to existing knowledge or has economic relevance or both and that makes the invention not evident to a person versed in the art.” This implies that the innovation must not be evident to someone experienced in the field to which the invention pertains. It must be original and not evident to someone with similar knowledge.

Capable of Industrial Application

Section 2(ac) of the Patents Act defines industrial application as “the invention is capable of being manufactured or utilized in an industry.” This indicates that the innovation cannot exist in the abstract. It must be applied in any industry, which indicates that the innovation must be useful in order to be patentable.

Types of Patent Applications

An applicant can file two types of patent applications with the patent office, and they are as follows:

Convention Application,
Provisional Application,
Ordinary or Complete Application,
PCT International Application,
PCT National Phase Application,
Divisional Application, and
Patent of Addition.

Convention Application

A convention application is to be filed by the applicant to claim a priority date on the basis of similar or identical applications filed in any of the convention countries. To get convention status, an applicant must file an application with the Indian Patent Office within one year after the date of the initial filing of an identical application in the convention nation. In simple words, a convention application grants the applicant preference in all convention nations.

Provisional Application

It is also known as a temporary application and is filed when the invention is under examination or incomplete. It is a kind of an application filed in the patent office to reserve a spot or give priority.

Ordinary or Complete Application

This kind of application is filed when the invention is complete; the applicant doesn’t have any priority to claim and has complete specifications. It can be filed through:

Direct filing
Subsequent filing

PCT International Application

It is a type of international application; however, it does not provide an international patent. It paves the way for a streamlined application process in many countries. It is governed by Patent Cooperation Treaty and is valid in up to 142 countries. Basically, it means that the application shall protect the invention from being copied in the given 142 countries.

PCT National Phase Application

It is mandatory for an applicant to file a national phase application for each country where protection is sought. The deadline for filing is 31 months from the priority date or the international filing date, whichever is sooner. Each member nation might increase the time limit through National Laws.

Divisional Application

If a given application claims for more than one invention, the applicant may opt to partition the application and submit two or more applications. These applications have the same priority date as the parent application.

Patent of Addition

This application must be submitted if the applicant learns that he has discovered an invention that is a minor modification of an invention that the applicant has already applied for or patented. This can only be filed if the invention does not need a significant inventive step.

Since a patent of addition is only issued after the parent patent is obtained, no additional renewal fee should be paid throughout the period of the primary patent. Furthermore, it should be awarded for the same duration as the patent for the primary invention and so expires concurrently with the main patent. The date of filing here shall be the date of filing of the application for patent of addition.

Process of Patent Registration in India

The process of registering a patent entails several steps, which are summarised below:

Step 1: To approach a professional

To protect your invention from being stolen or copied, the inventor must get its invention patented. It is advisable to seek assistance from a patent attorney to file a patent application. Given the number of deadlines, it is suggested that you engage a professional with patent expertise.

If you opt to hire a professional, make sure you sign an NDA (Non-Disclosure Agreement) with the patent specialist before disclosing any information about your idea.

Step 2: Patent Search

The first step after hiring a professional must be to conduct a patent search. It is essential to conduct a patent search before filing a patent application. It is often asked, “how to search patents or perform a patent search”. Performing a patent search can save your time and money by determining whether or not your innovation already exists. After doing a comprehensive patent search, you will be able to assess if your invention will infringe on the rights of other patents or whether it would invalidate a competing patent. Once Patent Search is complete, an applicant must generate a user id and password in order to apply online.

Note: A patent registration in India is only applicable in India. Patent registration guards your idea solely in India and no other nation. On the contrary, you may also be able to protect your innovation in other nations. A separate patent registration application must be filed in each nation for this purpose.

Step 3: Drafting a Patent Application

Form 1 & Form 2 also known as the Indian Patent Application Form and the patent specification form respectively must be completed and submitted. Depending on which Indian state you live in, you must file either a provisional or a full patent application.

It is advisable to file a provisional application if the invention is still in the development phase, as this will prevent the filing date from changing. The applicant has 12 months to file the whole specification, which provides the applicant with plenty of time to test and finalize your innovation.

A patent application is divided into three parts:

Abstract
Specifications
Claims

The end goal of writing a claim is to define the innovation covered by the patent. The reason a patent agent or attorney begins with claims is that once we have a complete set of claims that provide appropriate protection to the invention and are approved by you (inventor), writing the remaining parts of the patent application, such as the detailed description, abstract, and summary, gets easier because these parts generally follow the boundaries set by claims.

Once the application is complete, the authorized patent agent or attorney applies to the patent office in India.

Step 4: Publication of the Patent Application

Every application shall be published in the official journal only after the 18th month from the date of filing or the date of priority, whichever is sooner. Indian patent applications might be published early if a formal request is submitted.

Step 5: Examination of Patent Application

Once the Patent Application is submitted with the patent office in India, the authorities will examine the application. The patent will be awarded if the innovation is unique and meets the conditions for patentable invention.

Step 6: Objection raised

The examiner has the authority to raise objections while examining the patent application. On the basis of the application, the examiner issues a patent examination report stating the objections related to the patent application.

Step 7: Reply to the objection

Once the examiner issues the patent examination report, the applicant must file a reply for the same stating clarification to the examiner’s doubts.

The maximum time allowed to respond is six months from the First Examination Report’s issuance date. However, it might extend this time for another three months by submitting a request to the Indian Patent Office (IPO).

Step 8: Grant of Patent

Once the application has overcome all of the examiner’s objections, the patent office will issue the applicant a patent. After the patent is awarded, the IPO publishes the patent in the patent gazette. Finally, the process of patent registration is complete, and the patent is granted for the next 20 years.

Comparisons with China and the US

According to the survey, the number of patents awarded in India remains a fraction of that in China, the United States, Japan, and South Korea. Though the number of patents registered in India has increased significantly, according to the World Intellectual Property Organization (WIPO), it is still a fraction of the 5.30 lakh patents issued in China and the 3.52 lakh patents granted in the United States, according to the Economic Survey.

As per the survey, this difference is due to India’s low R&D spending, which was 0.7 percent of the country’s GDP in 2020. Other obstacles that have discouraged people from filing patents in India include procedural delays and complexity.

The survey further shows that the average period for a final decision on patent granting in India in 2020 was 42 months, dropping from 52 months in 2019 and 64 months in 2017. However, this remained significantly greater than the 20.8 months taken in the United States, 20 months in China, 15.8 months in South Korea, and 15 months in Japan.

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Arnab Ranjan Goswami v. Union of India and others

By

Sneha Mahawar

-

March 14, 2022

0

This article is written by Devina Rathod and pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution. This article has been edited by Ruchika Mohapatra(Associate, Lawsikho).

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

After the Legislature, the Executive, and the Judiciary, the Press is the fourth cornerstone of a democratic government. There can be no proper functioning of government without free and fair political discourse. In the case of Indian Express vs. Association of India, it was decided that the press plays a particularly important role in a vote-based society and that courts should constantly protect press freedom.

Important facts of the case

The Supreme Court decided on the Criminal Writ Petition (Crl) No. 130 of 2020 filed by Mr. Arnab Goswami, the Editor-in-Chief of Republic TV, in the court of law. He anchors on both Republic TV (English) and R Bharat, a Hindi news channel owned by ARG Outlier Media Asianet News Private Limited which is managed by him as the CEO and Managing Director. Multiple FIRs and criminal charges were filed against Mr. Goswami in the states of Maharashtra, Chhattisgarh, Rajasthan, Madhya Pradesh, Telangana, Jharkhand, and the UT of Jammu & Kashmir following the airing of two programmes on Republic TV on April 16th and 21st, 2020.

The discussions in question involved Mr. Goswami referring to an incident known as the Palghar Lynching. The incident occurred on April 16^th, 2020 in Gadchinchle town, Palghar District, Maharashtra. The vile act allegedly involved three people being brutally beaten to death by a mob, two of them were Sadhus, in the presence of police officials and forest guard officials. He addressed Sonia Gandhi’s silence on the primary point wherein three of them were lynched by locals on suspicion of them being thieves while on their way to Silvassa; inquiring if she would have remained as tight-lipped if Muslim or Christian religious leaders had been lynched instead of Hindus.

Mr. Goswami went on to ask pertinent questions claiming that a well-coordinated and nasty campaign had been undertaken. Several members of the Indian National Congress (INC) submitted charges for offences allegedly committed under Sections 153, 153A, 153B, 295A, 298, 500, 504, 506, and 120B of the Indian Penal Code, 1860.

Mr. Goswami also mentioned an event on April 23, 2020, between 12:30 and 1:00 a.m., when he was driving home with his wife and was confronted and assaulted by two people on a motorcycle. Both of them are claimed to have admitted to being members of the INC. The petitioner thus rejected the propagation of any religious beliefs.

In consequence, the petitioner moved to the court under Article 32 for protection of his fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution.

Contentions from both sides

Petitioner

In view of the petition filed under Article 32, it was stated that the dialogue he held on live television was solely to analyze the shoddy investigation of the Palghar Lynching incident and the contradicting opinions of the authorities as well as the State Government’s silence.
Questions were raised regarding the government’s authority in Maharashtra with regards to the fact that the horrendous incident took place in front of police officials.
The claim of proliferating communal perceptions was refuted by the lawyer.
The court was requested to declare his unequivocal freedom of speech and expression under Article 19(1)(a) of the Indian Constitution.
It was stated that the inquiry into the case was biased and unjust as the inquiry approach drew everyone to the conclusion that the authorities were pulling a fast one on the petitioner.
He was also challenging the Maharashtra police’s delay in the Palghar event, and that as the institution was controlled by the state government, as a result contributing to a pronounced conflict of interest.
The principal reliefs sought were the dismissal of all complaints and FIRs filed against Mr. Goswami in various states, as well as a request from the Union Government for safety for his family.

Respondents

The Mumbai Police claimed that the petitioner’s actions were obstructing the investigation.
It sprang from the fact that Mr. Goswami was accompanied by a multitude of columnists when he was headed to the NM Joshi Marg Police Station.
After four hours of questioning, Republic Bharat’s Twitter account released a message saying, “Truth shall triumph” along with some other remarks that were delivered live on television.
On Republic Bharat’s Twitter account, further tweets were delivered, giving the impression that the Mumbai police are biased.
The accusation was that the investigating agency was under persistent pressure, causing the investigation to come to a halt.

Interim Order (24.04.2020)

Mr. Arnab Goswami will be shielded from coercion for three weeks from the date of the verdict, according to the court. Except for one FIR lodged in Nagpur and now transferred to Mumbai, the Court halted all FIRs filed against Mr. Goswami.

In addition to the personal security provided to Mr. Goswami, the court ordered that if he makes a request to the Commissioner of Police, Mumbai, for adequate security at his residence or the studio of Republic TV in Mumbai, such a request be expeditiously considered and police protection be provided as per the threat perception if considered appropriate, which shall continue until the threat subsides.

It also gave the petitioner the right to file an anticipatory bail plea with the Bombay High Court under Section 438 of the Code of Criminal Procedure, 1973, and to pursue any other legal remedies.

Issues

Whether Mr. Goswami can get the case investigated by authority of his preference?
Whether the Courts can consolidate the various similar FIRs under Article 32?
Whether the statements made by Mr. Goswami on live television are protected by Article 19(1)(a) or can be limited by the restrictions of Article 19(2)?

Analysis

Preferring an investigating agency

The court refused Mr. Goswami’s request to transfer the investigation to the Central Bureau of Investigation. It did, however, allow him to pursue any legal remedies available under the CrPC in front of the appropriate venue.
Mr. Goswami’s plea to transfer the application was declined, citing the judgement in Romila Thapar v. Union of India ((2018) 10 SCC 753), which ruled that the “accused does not have a say in the subject of designation of investigating agency”. It may be determined that Mr. Goswami had no say in who the investigating agency was and how the investigation should be performed.
The court stated that an examination may only be moved to CBI in exceptional and extraordinary instances. They claimed that this was necessary to maintain public confidence in the state’s impartiality.

Consolidation of FIRs

The court rejected all other identical FIRs filed against Arnab Goswami in different states, with the exception of the one filed in Nagpur, which has now been transferred to Mumbai.
The court further observed the case of TT Antony v. the State of Kerala ((2001) 6 SCC 181), in which the court determined that subjecting an individual to multiple proceedings for the same offence is inconsistent with the provisions as mentioned in the Constitution.
When a counter-case is filed, the Court determined that conducting a new investigation based on a related cognizable offence would be an “abuse of the statutory power of investigation” and could be construed as justified for exercising power under Section 482 of the Criminal Procedure Code or Articles 226/227 of the Constitution.
It was established in Ram Lal Narang and Ors v. The State that a new FIR might be filed on the same subject. This is the case as long as the second report contains fresh information and information about the case that was not included in the original report.
It was stated that no other FIR or complaint, as the case may be, shall be filed or pursued in any other forum in connection with the same cause of action arising from the petitioner’s broadcast on R Bharat on April 21, 2020.
Additionally, all other FIRs or complaints filed in connection with the same cause of action were also deemed unmaintainable.

Can he be protected under Article 19(1)(a) for the statements made on live television

Article 19(1)(a) promises freedom of speech and expression, however, this right cannot be used to tarnish the religious sentiments of the people.
The court refused to dismiss the FIR filed against Mr. Goswami for allegedly wounding religious sentiments on his channel Republic TV during a show by making disparaging comments about a religious community.
Reasonable restrictions have been imposed under Article 19(2) of the Constitution of India with the intent to protect the sovereignty and integrity of the country.

Conclusion

Each individual has the option of assessment and articulation, according to the Universal Declaration of Human Rights. While the court believes that a columnist should be able to seek for, obtain, and discuss suppositions and realities, he cannot undermine strict opinions. Any denunciation or constraint imposed on an individual’s major right must be reasonable and not subjective, according to the Maneka Gandhi case.

Article 19(2) serves as a check on Article 19(1)(a) of the Indian Constitution. It sets reasonable limitations on the exercise of fundamental rights on the basis of the country’s sovereignty and integrity, the state’s security, friendly relations with other states, public order, decency or morality, or contempt of court, defamation, or incitement to an offence. However, only malicious and deliberate acts should be punishable, rather than casual observations made without malicious intent.

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