All you need to know about sapinda relationships

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February 6, 2022

This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of sapinda relationships.

Table of Contents

Introduction

Dharma was used to create traditional Hindu Law, which consisted of a collection of principles and norms. Dharma encompasses all aspects of one’s existence, including social, moral, legal, and religious rights and responsibilities. Marriage is viewed by Hindus as a permanent relationship intended for the execution of spiritual and religious responsibilities, hence particular rituals and ceremonies must be performed. These ideas evolved with the passage of time. The Hindu Marriage Act of 1955 brought about significant reforms in Hindu law. In Hindu law, this codified legislation explicitly spelled forth the requirements for marriage and divorce. Under the Hindu Marriage Act of 1955, one of the two basic elements of a legitimate Hindu marriage is a sapinda relationship and degrees of prohibited relationship.

Sapinda relationships : an insight

Sapinda relationships refer to extended family ties that span generations, such as father, grandpa, and so on. Two legal commentaries have provided two definitions for the sapinda relationships. Sapinda, according to Mitakshara, refers to a person who is linked by the same body particles, whereas Dayabhaga refers to a person who is linked by the same pinda (ball of rice or funeral cake offered at sraddha ceremony). The prohibition of sapinda marriage is based on the rule of exogamy. The Hindu Marriage Act of 1955 changed the notion of Mitakshara and made it illegal to marry people who are in a sapinda relationship unless a genuine tradition or custom permits such a marriage or union.

According to Section 3 of the Act, the custom must be legal. It was held in the case of Harihar Prasad v. Balmiki Prasad (1974) that a valid custom must be established by clear and unambiguous evidence. It is only through such evidence that the courts can be assured of their existence, and they must meet the conditions of antiquity and certainty for legal recognition. Sapinda marriages are punishable under Section 18(b) of the Act of 1955 by simple imprisonment for up to one month, a fine of up to one thousand rupees, or both.

The rules that apply for determining a sapinda relationship are provided hereunder:

The sapinda relationship is always tracked upward, in the ascent direction, rather than downward, in the line of descent.
The computation of degrees takes into account both the individual and the common ancestor.

Theories of sapinda relationships

Two theories of sapinda relationship that were propounded in the ancient Hindu law were:

Oblation theory, and
Particles of the same body theory.

Jimutavahana (oblation) theory

According to the Jimutavahana (oblation) theory, Pinda refers to the rice ball presented to departed ancestors during a sraddha ritual. As a result, sapindas connections are those that are linked by food oblations. Therefore, if one person presents Pindas to the other (e.g., a son and a father), or if both offer Pindas to a shared ancestor (e.g., brothers), or if both get Pindas from the same folks, they are sapindas (e.g. husband and wife for both will receive Pindas from their sons).

Vijnaneswara’s (particles of the same body) theory

Pinda, according to Vijnaneswara’s (particles of the same body) hypothesis, means ‘body.’ Sapinda relationships are ones that are linked by the body. In other words, when two people share a common ancestor, they form a sapinda connection. “This may prove to be an overly broad phrase,” as Vijnaneswara had observed, since, in this beginningless Samsara, such a bond may exist in some manner or another amongst all individuals. As a result, according to the sage Yajnavalkya, “sapinda relationships terminate after the fifth on the mother’s side (in the mother’s line), and after the seventh on the father’s side (in the father’s line).” Not only does it relate to marriage, but it also applies to inheritance. Sapindas are divided into two types, namely, samangotrasapindas and bhinagotrasapindas. The former are agnates within seven degrees of the shared ancestor, whereas the latter are cognates within five degrees.

Sapinda relationships under the Hindu Marriage Act, 1955

The following are the basic requirements to follow in a Hindu marriage, as stated in Section 5 of the Hindu Marriage Act of 1995:

Monogamy (a type of relationship in which two people are married to each other).
Mental Capacity.
Consent of the parties.
Age of the parties.
Degrees of Prohibited Relationship.
Sapinda Relationship.

When the Hindu Marriage Act, 1955 was enacted it set aside the Jimutavahana (oblation) theory and accepted the Vijnaneswara’s (particles of the same body) theory with some modification. Marriage between people who have a sapinda relationship is banned under Section 5(v) of the Act unless there is a custom that authorises it, as have been discussed previously. Under Section 18(b) of the Act, a violation of this provision would result in simple imprisonment of up to one month or a fine of Rs. 1000/-, or both.

In the case of Arun Laxmanrao Navalkar v. Meena Arun Navalkar (2006), the Bombay High Court had observed that Section 5(v) of the Hindu Marriage Act, 1955 does not only declare that the marriage of the persons in a sapinda relationship is null and invalid but also specifies that it is only valid if there is a custom to the contrary. Because of this phraseology, the learned single Judge has held that the party proposing such a relationship must not only show such a relationship but also show that there was no custom to the contrary because the said subsection only prohibits the marriage if such a custom does not exist within the community. If the subsection is viewed this way, the onus may only be discharged by stating the negative reality that no such custom exists within the parties’ community.

In the aforementioned case, the parties to a marriage in question were from a common ancestor, one Moroba who had one son Laxman and one daughter Champubai. The husband is the son of Laxman and the wife is the daughter of Champubai’s son. Upon this admitted relationship the husband claimed that he and his wife were sapindas of one another, although the wife was of the opinion that they were not. Going by the reasoning provided above, it can be said that the party asserting the existence of such a custom must demonstrate it with concrete examples. In fact, during the trial, the wife sought to demonstrate as many as nine examples of couples in their community who are said to be in a sapinda relationship to discharge such onus. But the custom propounded by her cannot be taken to have the attribute of either continuity or longevity, since the lapse of time of years between the marriages of these parties was not shown. Thus the claim that the custom had been carried on for a long time was likewise declared unproven. The marriage between the parties was therefore declared null and void by the Hon’ble High Court.

Section 3(f) of the Hindu Marriage Act, 1955

According to Section 3(f)(i) of the Act, a sapinda relationship extends to the third generation (inclusive of the third generation) in the line of descent through the mother and the fifth generation (inclusive of the fifth generation) in the line of descent through the father with respect to any person. The line must always be traced upwards from the individual in question when assessing the sapinda connection, and this person must be counted as the first generation. This covers full blood, half-blood, and uterine blood relationships, as well as legal and illegitimate blood relationships, as well as blood relationships formed via adoption. If two people have a common ancestor, they are sapinda to that ancestor, and they are sapinda of each other.

Two people are said to be ‘sapindas’ of each other if one is a lineal ascendant of the other within the limitations of sapinda connections, or if they have a common lineal ascendant who is within the limits of sapinda relationships with regard to each of them, according to Section 3 (f)(ii) of the Act. If one is a lineal ascendant of the other within the boundaries of sapinda connection, or if they share a common lineal ascendant who is within the limitations of sapinda relationship with regard to each of them, they are said to be ‘sapindas’ of each other.

Degrees of Prohibited Relationship

In Hindu marriage, there are some ties that cannot be solemnised, these types of partnerships are known as degrees of forbidden relationships. The major goal of this law is to avoid incestuous marriages, which are weddings between persons who are related in a prohibited way, such as brothers and sisters, children and grandchildren, and so on. To put it another way, if two people are involved in this type of relationship, their marriage will never take place. This is because the Dharmashastra regarded sex relationships with one’s mother, sister, daughter, or son’s wife as the ultimate sin, referred to as Mahapataka. It’s worth noting that, while the Hindu Marriage Act, 1955 deals separately with the issues of prohibited degrees of relationship and sapinda relationship, the two bans may overlap in some situations.

It was decided in Balusami Reddiar v. Balakrishna Reddiar (1956) that the tradition could not be contrary to public policy or morals. Further, the Punjab and Haryana High Court decided in Shakuntala Devi v. Amar Nath (1982) that two people can marry within the prohibited relationship if there is proof of established tradition, which must be very old and beyond human memory.

Who comes under the degrees of Prohibited Relationship

For a man his prohibited degree of relations are :

Female ascendant in the line
Wife of his lineal ascendant
Wife of the brother
Wife of his father’s brother
Wife of his mother’s brother
Wife of his grandfather’s brother
Wife of his grandmother’s brother
Sister
Brother’s daughter
Sister’s daughter
Father’s sister
Mother’s sister
Father’s sister’s daughter
Father’s brother’s daughter
Mother’s sister’s daughter
Mother’s brother’s daughter.

2. For a woman her prohibited degree of relations are :

Lineal ascendants like Father, Father’s father
Husband of a lineal ascendant
Husband of a lineal descendant
Brother
Father’s brother
Mother’s brother
Brother’s son
Sister’s son
Father’s brother’s son
Father’s sister’s son
Mother’s brother’s son
Mother’s sister’s son.

Provisions relating to degrees of prohibited relationship

Persons in prohibited relationships according to Section 3(g) of the Hindu Marriage Act, 1955 are:

if one is a lineal descendant of the other; or
if one was the wife or husband of a lineal ascendant or descendant of the other; or
if one was the wife of the other’s brother, father’s or mother’s brother, grandfather’s or grandmother’s brother,
if the two are siblings, uncles and nieces, aunts and nephews, or siblings’ offspring, or two brothers or sisters.

The relationship also includes:

Relationship by half or uterine blood as well as by full blood.
Illegitimate blood relationship as well as legitimate.
Relationship by adoption as well as by blood.

The parties to a marriage are not within the degrees of prohibited relationship, according to Section 5(iv) of the Hindu Marriage Act, 1955, unless the custom or usage governing each of them authorises marriage between the two. This condition makes it clear that the couples being married must not be in any degree of prohibited relationship unless the tradition or usage governing them allows it. Only if there is a valid custom, a marriage formed within the degrees of the prohibited relationship becomes lawful and valid.

If a marriage falls into one of the prohibited relationship degrees, it is void by Section 11 of the Act and punishable by simple imprisonment for up to one month, a fine, or both under Section 18(b) of the same Act. In Kamani Devi v. Kameshwar Singh (1945), it was held that even if the marriage was unlawful because it was within the prohibited degree, the wife’s maintenance duty would continue.

These provisions of the Act of 1955 have a long history. To undo a long legacy of the history of custom and tradition sought to be sanctified by religion, it became necessary for the law to define ‘prohibited degrees’, that intra gotra marriages should not be permitted. The land was a key asset of the top castes and classes in agrarian cultures, and marriage was a patrilocal institution, as it is still today. The restriction on intra gotra marriages effectively meant that a daughter was estranged from her natal family and had effectively lost her status as a member of the natal family. Daughters were not members of the coparcenary in any case and had no claim to family property, let alone landed property. The belief that daughters are “parya dhan” strengthens this. Stridhan, in the form of jewellery made at the time of marriage and handed to the daughter, was intended to pay off all of her debts at the time of marriage. Currently, things are changing and perception surrounding the institution of marriage is being subjected to progressive evolution.

Conclusion

As we come to the conclusion of this article, with regards to the sapinda relationship, the following points should be considered:

Sapinda relationship extends as far as 3rd generation in the line of ascent through the mother in case of both the parties.
In the case of both parties, sapinda relationships extend as far as the 5th generation in the line of descent through the father.
In the case of both parties, the sapinda relationship is traced upward, considering each of them as first-generation, inclusive of the individuals concerned.
The line of the ascent will be inclusive of both male and female ancestors.
Sapinda relationships include half-blood, full-blood, uterine blood, and adoption.

References

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Article 39 of the Indian Constitution

By

Rachit Garg

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February 6, 2022

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The article is written by Nikhil Thakur from Manav Rachna University. In this article, the author aims at explaining the various nuances of Article 39 of the Indian Constitution, 1950.

Table of Contents

Introduction

The Directive Principles of the State Policy (DPSP) has been enumerated under Part IV of the Indian Constitution from Articles 36 to 51. The drafters/ framers of the Indian Constitution have taken this concept of the Directive Principle of the State Policy (DPSP) from the Irish Constitution, 1937 which has further borrowed the said concept from the Spanish Constitution.

As rightly said by Dr. B.R Ambedkar, these Directive Principles of the State Policy (DPSP) form the novel feature of the Indian Constitution. The Fundamental Rights along with the Directive Principles are the heart and soul of the Indian Constitution.

Classification of the Directive Principles of the State Policy (DPSP)

The Indian Constitution does not explicitly mention any classification of the Directive Principles of the State Policy (DPSP). However, on the basis of the content of the various Articles, they can be classified under three major categories, that are:

Socialistic Principles, (Article 38, 39, 39A, 41, 42, 43, 43A and 47)
Gandhian Principles and (Article 40, 43, 43B, 46, 47, 48)
Liberal-intellectual Principles. (Article 44, 45, 48, 48A, 49, 50, 51)

Article 39 of the Indian Constitution

Article 39 of the Indian Constitution, specifically deals with the provisions or principles of policy that shall be undertaken by the state. Article 39 contains six sub-clauses, that are:

That all the citizens irrespective of their sex whether men or women shall equally have the right to adequate means of livelihood. [Article 39(a) of the Indian Constitution]
That the resources and the ownership of those resources and materials shall be distributed in such a way that it fulfils the common goal. [Article 39(b) of the Indian Constitution]
That the economic system shall be executed in such a way that the concentration of wealth and means of production shall not result in a common detriment. [Article 39(c) of the Indian Constitution]
That equal pay for equal work shall be promoted. [Article 39(d) of the Indian Constitution]
That the health and strength of workers irrespective of whether men, women or children shall not be abused or manipulated. Further, economic necessity/condition shall not be the reason for entering such avocation that is unsuitable for specific age or strength. [Article 39(e) of the Indian Constitution]
That appropriate opportunities shall be given to children that would help them in building in a healthy manner, and in the condition of freedom and dignity. Further, childhood and youth shall be protected from any kind of exploitation and against moral and material abandonment. [Article 39(f) of the Indian Constitution]

Article 39(f) of the Indian Constitution,1950 was substituted through the 42nd Constitutional Amendment Act, 1976 to expand the scope of the said article. Previously, Article 39(f) stated that “childhood and youth are protected or guarded against exploitation or manipulation and against moral and material abandonment.”

The sole purpose of this Article is to ensure that the people or the citizens of India are provided with adequate means of livelihood, fair distribution of wealth, equal pay for equal work, protection of children and labour. The responsibility of ensuring all this is upon the state.

The essence of Article 39 has been enumerated under sub-clauses (b) and (c). Article 39(b) and (c) deals with ensuring a welfare society and the promotion of an egalitarian society. In Kesavananda Bharati v. The State of Kerala (1973) the Supreme Court of India stated that in the process of development in any field like social, economic, and political, then such development shall not be in contravention to the individual’s right to dignity. Hence, here the Supreme Court observed that even the framers of the Indian Constitution were of the opinion that to not have such a society where the individuals have not ensured any sort of dignity.

In a landmark Supreme Court judgement of the State of Bihar v. Kameshwar Singh AIR (1952) the Hon’ble Court explicitly held that any legislation that aims at doing away with the concentration of wealth/land in the hands of a few and promotes an egalitarian approach would be beneficial for the society as a whole and this would encourage an inclusive development that would further the cause as enumerated under the Article 39(b) and (c) of the Indian Constitution.

The Hon’ble Court under the Assam Sillimanite Ltd. v. Union of India (1992) explained what is “material resources of the community” that has been mentioned under Article 39(b) of the Indian Constitution. The Court said, the above-mentioned term means and includes all those things that are apt of creating wealth for the community as a whole.

In the above-mentioned case, the Supreme Court held that any Act, legislation, etc. which aims at expanding the production and supply of the refractories in order to meet the crucial demand of the iron and steel industry is well protected under Article 39(b) of the Indian Constitution.

Moreover, the “material resources of the community” subsume not only those resources which are already vested in the hands of the state rather also those which are in the hands of private individuals as laid down in the case of Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd. (1982) and again reiterated in Tinsukhia Electric Supply Co. Ltd. v. State of Assam (1989).

In the case of T.N v. L. Abu Kavur Bai (1983) and Jilubhai Nanbhai Khachar v. State of Gujarat (1994) it was held that material resources include movable as well as immovable resources like land, building, etc. besides natural and physical resources. Nationalisation of private enterprises or undertakings and services by the states is eligible to be covered within the scope of material resources; this approach was observed in the case of Assam Sillimanite Ltd. v. Union of India (1992).

Article 39(d) of the Indian Constitution aims at ensuring equal pay among men and women for the same work. The Delhi High Court relied on Article 39(d) while dealing with the case of Randhir Singh v. Union of India (1982), Jeet Singh v. MCD (1986) and Delhi Veterinary Assn. v. Union of India (1984). The Hon’ble Court invalidated the disparities of pay scales of drivers in the Delhi Police Force, the Delhi Administration and the Central Government.

In Jaipal v. State of Haryana (1988), the Hon’ble Court again relied on Article 39(d) of the Indian Constitution and deplored the discrepancies of pay scale among permanent and temporary employees or workers including regular or casual workers as long as they are performing similar work.

Through Supreme Court Employees’ Welfare Assn. v. Union of India (1989) and Harbans Lal v. State of Himachal Pradesh (1989), the Supreme Court gave the ruling that Article 39(d) is supported via Article 14 and 16 of the Indian Constitution and all those reasonable classifications mentioned under these two Articles shall not be made applicable in case of Article 39(d). Hence, employees employed under various other establishments and institutions cannot claim equality in the pay scale as a right as observed in the case of Assam Sillimanite Ltd. V. Union of India (1992). Furthermore, The Hon’ble Court under the State of Himachal Pradesh v. P.D Attri (1999) stated that the employees/workers from another state cannot claim equality of payment in that state where such person happens to be or is employed

Under V. Markendeya v. the State of Andhra Pradesh (1989) and Mewa Ram Kanojia v. All India Institute of Medical Science (1989), the Court explicitly held that pay scale is subjected to the educational qualifications of the employee.

If any housing facility is provided to one establishment and not to the other, in that case, the court cannot issue a writ of Mandamus concerning the allotment of houses to low-income employees in that establishment because the other establishment is providing the same. Moreover, the court cannot force such establishments to allot houses on grounds of social welfare as held in Jagdish Prasad v. MCD (1993).

Legislations concerning Article 39

Since the independence, various legislation concerning employees and their protection have been enacted that aims at avoiding and curbing evil practises like exploitation:

Government schemes adopted for the welfare of society

Article 39 aims at ensuring a welfare society. Hence, over the years, various schemes and policies have been adopted by the government for ensuring inclusivity, welfare society, etc., some of them are:

Pradhan Mantri Shram Yogi Maan-Dhan Yojana

The abovementioned Yojana aims at providing social security to employees who are engaged as street vendors, agriculture-related aspects, construction workers, rickshaws, auto wheelers, rag pickers, etc. the aim is to promote inclusivity in the society.

Pradhan Mantri Rozgar Protsahan Yojana

The Yojana aims at encouraging employment in society for the unskilled and semi-skilled workers by providing incentives to the employers.

Aam Aami Bima Yojana

It is a social security scheme that aims at providing insurance cover to all those workers who fall under rural landless households.

Atal Beemit Vyakti Kalyan Yojana

The Yojana furnishes monetary support to all those employees who for any reason have got unemployed.

Central Sector Scheme For Rehabilitation of Bonded Labourer, 2016

This central scheme aims at identifying and rehabilitating the bonded labour under which the central government would provide monetary assistance.

Gatidhara Scheme for Self-Employment

This is a state-specific scheme launched in the State of West Bengal. This scheme aims at providing employment to all those youths who have got unemployed.

Grant in Aid Scheme to NGOs for Welfare of Women Labour

This scheme aims at educating women about their rights. The scheme will furnish funds in favour of all those NGOs, institutions and organisations that are established for the welfare of women.

Rashtriya Swasthya Bima Yojana

The scheme will provide socio-economic security to Below Poverty Line (BPL) workers.

Revised Integrated Housing Scheme

This is an integrated housing scheme that aids workers working in mines like iron, mica, limestone, etc. with housing facilities. The only condition for availing of this scheme is that the beneficiary must not be having any pucca house already.

Garib Kalyan Rozgar Yojana

This scheme was an outcome of the COVID-19 pandemic under which the government aims at promoting employment opportunities to all those migrant workers who have got displaced and further providing them the funds to re-establish their ventures.

Deen Dayal Upadhyaya Antodaya Yojana

The purpose of Deen Dayal Upadhyaya Antodaya Yojana (DAY) is to skill and train people residing in rural as well as urban areas. The chief purpose of the scheme is to expand and generate more and more employment and further provide funds to people so that they can set up their ventures.

Conclusion

Article 39 of the Indian Constitution make sure that the state while or before framing the policies, regulations, etc. shall put due consideration on ensuring adequate means of livelihood to every person irrespective of the fact that such person is a male or female, equal pay for equal work shall be promoted that aims at curbing the stereotype behaviour of the society towards the women, the employees shall be protected or safeguarded from any kind of exploitation, due consideration shall be made on the health of children and further ensuring enough opportunity to the youths for their development.

The only loophole that can be mentioned here is the non-inclusivity of other genders within the scope of Article 39 of the Indian Constitution as it includes only males and females.

References

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Death penalty should be abolished : an ongoing debate

By

Shoronya Banerjee

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February 6, 2022

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This article is written by Sujitha S, from the School of Excellence in Law, Chennai. This article deals with the contemporary legal issue of the abolition of the death penalty in India. Further, it briefly discusses the various arguments, alternative punishments, the relevant legal framework, and the validity of the punishment in India.

This article has been published by Shoronya Banerjee.

Introduction

In light of the circumstances brought forth by the twenty-first century, the death penalty debate is the most socially important topic. In India, the death penalty is a fundamental aspect of the criminal justice system. With the growing prominence of the human rights movement, the death penalty’s mere existence is being questioned as unethical. The 262nd Law Commission report has been widely hailed as a “historic,” “seminal,” “decisive,” and, in a more hyperbolic tone, a “paradigm shift” in the Indian death penalty jurisprudence. But what progress has it achieved by advocating revisions to the language of exception? With terrorism cases, the report replaces the rarest of rare criteria as the exception to death penalty repeal. In recent years, the death penalty issue has garnered considerable attention. While proponents of the death penalty argue that it should only be applied to the most egregious offences, human rights advocates argue that the death penalty violates an individual’s basic human rights.

The death penalty is not a novel concept; it has existed since the beginning of civilization. The death sentence (typically involving beheading the individual) was imposed by the king in ancient times for the express non-compliance of any person with any command issued by the king or with any moral obligation imposed on that person. It was eventually inserted into the Indian Penal Code of 1860, resulting in its legal incorporation, and it has been lawful in India ever since. In the twentieth century, there was a campaign to abolish the death penalty, which led to numerous states following suit and abolishing the death sentence. However, the death penalty has remained in place in India. This has sparked a lot of discussion and controversy, with human rights advocates presenting compelling arguments for the death penalty’s elimination.

Law Commission of India’s report

In its 262nd Report (August 2015), India’s Law Commission proposed that the death penalty be abolished for all crimes excluding terrorism-related offences and war. The report’s full recommendations are as follows:

The Commission urged that the government should implement measures such as police reforms, witness protection schemes, and victim compensation schemes as soon as possible.
The path of our own jurisprudence: From 1955, when no special reasons were required for imposing life imprisonment instead of death, to 1973, when special reasons were required for imposing the death penalty, to 1980, when the death penalty was limited to the rarest of rare cases by the Supreme Court – demonstrates the path we must take.
The Commission felt that the time had come for India to move towards abolition of the death penalty, informed by the expanded and deepened contents and horizons of the Right to Life, strengthened due process requirements in interactions between the state and the individual, prevailing standards of constitutional morality and human dignity.
Despite the fact that there is no acceptable penological reason for treating terrorism differently from other crimes, there is often concern that abolishing the death sentence for terrorism-related offences and war will have an impact on national security.
Given the legislators’ concerns, the Commission saw no reason to wait any longer to take the first step toward abolishing the death sentence for all offences other than terrorism-related offences.

Death penalty under IPC

The death penalty, also known as capital punishment, is the harshest form of punishment available under any criminal law in existence anywhere in the world. The legal method through which the state exercises its power to take an individual’s life is known as capital punishment. “No individual shall be deprived of his life or personal liberty except pursuant to the procedure established by law,” says Article 21 of the Indian Constitution, which guarantees every citizen the fundamental right to life. This means that your right to life will never be taken away from you until you follow the legal system, which means that the state can take away your life if it sees fit through the legal process. Not all crimes are punishable by death; in fact, most agencies do not seek capital punishment; rather, it is reserved for the most egregious of offences.

Eleven offences mentioned below if performed inside the territory of India are punishable by death, according to the Indian Penal Code and other Acts:

Section 120B : Being a party to a criminal conspiracy to commit a capital offence.
Section 121 : Waging, or attempting to wage war, or abetting waging of war, against the Government of India.
Section 132 : Abetting a mutiny in the armed forces (if a mutiny occurs as a result), engaging in mutiny.
Section 194 : Giving or fabricating false evidence with intent to procure a conviction of a capital offence.
Sections 302, 303: Murder.
Section 305 : Abetting the suicide of a minor.
Section 364A: Kidnapping, in the course of which the victim was held for ransom or other coercive purposes.
Section 376A: Criminal Law (Amendment) Act, 2013: Rape if the perpetrator inflicts injuries that result in the victim’s death or incapacitation in a persistent vegetative state, or is a repeat offender
Section 396: Banditry with murder, in cases where a group of five or more individuals commit banditry and one of them commits murder in the course of that crime, all members of the group are liable for the death penalty.
Part II, Section 4 of Prevention of Sati Act, aiding or abetting any act of Sati such as:

Any inducement to a widow to have her body burned or buried alive alongside the body of her deceased husband, or with any object associated with the husband, regardless of whether she is in a fit state of mind or is suffering from intoxication, or any other cause impeding her free will.
Convincing a widow or woman that the act of Sati will bring spiritual advantage to her or her departed spouse or relative, or to the family’s overall well-being.
Encouraging a widow or woman to stick to her decision to commit Sati, thus inciting her to do so.
Engaging in any procession in conjunction with the commission of Sati, or assisting the widow or woman in her choice to commit Sati by transporting her to the cremation or burial cemetery with the body of her departed spouse or relative.
Being present at the location where Sati is committed to such a commission or any ceremony associated with it as an active participant.
Hindering or impeding the widow or woman from escaping being burned alive or buried alive.

31A of the Narcotic Drugs and Psychotropic Substances Act,1985 – Drug trafficking in cases of repeated offences: Regardless of Section 31, if any person who has been sentenced for the commission of, or attempt to carry out, or abetment of, or criminal scheme to carry out, any of the offences culpable under Section 27 of the NDPS Act, including offences involving the business amount of any opiate tranquiliser or psychotropic substance, is indicted in this manner for the commission of, or attempt to carry out, or abetment of, or criminal scheme to carry out;

Any taking part in the production, manufacture, ownership, transportation, importation into India, exportation from India, or transhipment of opiates or psychotropic substances.
Any exercise specified under the said Article, that is financed, legally or by implication, shall be punishable with death.

Death penalty : the international framework

Despite the fact that the death penalty was still in practice in the majority of countries in the early 1960s, the drafters of the International Covenant on Civil and Political Rights (ICCPR) have already begun efforts to have it abolished in international law.
Although Article 6 of the ICCPR allows for the use of the death penalty in restricted circumstances, it also states that nothing in this Article shall be invoked to delay or hinder any State Party to the present Covenant from abolishing capital punishment.
The UN Economic and Social Council enacted Safeguards in 1984, ensuring that persons facing the death penalty have their rights protected.
The ICCPR’s Second Optional Protocol aims to abolish the death penalty.
The UN General Assembly ratified the Second Optional Protocol to the ICCPR in 1989, 33 years after the adoption of the Covenant itself, giving abolition a powerful fresh boost. Members of the Protocol’s signatories pledged not to execute anyone within their domains.
Resolutions of the United Nations General Assembly: The General Assembly urged states to observe international standards that protect the rights of persons facing the death sentence in a series of resolutions enacted in 2007, 2008, 2010, 2012, 2014, 2016, and 2018, and to gradually reduce the number of offences punishable by death.

Arguments against the abolition of death penalty

Prevention of future crimes

To begin with, the death sentence will prevent future offences. Future crimes may be discouraged by imposing the worst punishment for the most terrible of offences. This has a profound effect on human psychology. When a person knows he is likely to be severely penalised for specific conduct, and the cost of that behaviour much surpasses the reward, it is self-evident that he will not commit that act.

Ensuring justice

Second, the death penalty ensures that justice is served. The Preamble to the Indian Constitution aims to achieve, among other things, justice for all Indian citizens. The ways by which such justice can be achieved are crucial. Isn’t it only just that a person who has committed the most terrible of crimes, who poses a threat to society as a whole, who has no repentance, no ounce of humanity left in them, be sentenced to death? What rights are these offenders supposed to have, according to human rights advocates? What about the citizens’ trust in the justice system to ensure that a person is punished proportionately to the offence that he or she has committed? These questions clearly establish a foundation from which the elimination of the death penalty is viewed with severe scepticism.

Judicial reasoning

Third, the death penalty is not imposed arbitrarily. The death sentence in India is not imposed on the basis of no evidence or without any logic or reasoning. To begin with, as previously indicated, capital punishment is only applied in the rarest of circumstances. Even if the death sentence is carried out, the convict has the right to make a mercy petition, or the death sentence may be modified to life imprisonment owing to undue delay. The executive may launch a separate investigation and request new evidence after receiving the mercy petition. If new material is revealed, that is, information that is not included in the judicial record of the case, the executive may approve the mercy petition and reduce the convict’s death sentence to life imprisonment.

Furthermore, there are precise objective criteria, established by precedents, that must be met in order for a death sentence to be commuted to life imprisonment.

Bachan Singh v. State of Punjab (1980)

It was argued during the hearing of Bachan Singh’s case that the following conditions may be used as parameters for finding aggravating circumstances that would support the application of the death penalty:

if the murder happened after preplanning and involves extreme inhumanity;
if the murder involves extraordinary depravity; or
if the murder of army men or any public servant was committed—

while such person was on duty; or
as a result of anything done or attempted to be done by such member in the lawful discharge of his duty, if he was such member or public servant, as the case may be, at the time of the murder, or had ceased to be such member of a public servant; or

If the victim was a person who had acted in the legitimate exercise of his duties under Section 43 of the Code of Criminal Procedure 1973, or who had provided assistance to a Magistrate or a police officer who had demanded or required his support under Sections 37 and 129 of the same Code.

It was also recommended that the court, in exercising its discretion, examine the following factors as mitigating factors for granting the lower punishment of life imprisonment.

The offence was committed when the accused was suffering from severe mental or emotional instability;
The age of the accused, If the accused is young or old, he shall not be sentenced to death;
The likelihood that the accused would not commit criminal acts of violence that would pose a continuing threat to society;
The likelihood that the accused can be reformed;
That the accused believed he was morally permissible in committing the offence in the light of facts and circumstances of each case;
That the accused acted under the duress of another person’s superiority;
That the accused’s condition revealed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

In the case of Machhi Singh and Others v. the State Of Punjab (1983), the Supreme Court established certain standards for the imposition of the death penalty. The following were the guidelines:

Except in the most serious circumstances of extreme culpability, the death sentence is not required.
Before deciding on the death penalty, the circumstances of the ‘offender’, as well as the circumstances of the ‘crime,’ must be considered.
The death penalty is an exception rather than the norm. To put it another way, a death sentence must be imposed only when life imprisonment appears to be an insufficient punishment in light of the relevant circumstances of the crime, and only if the option of imposing a life sentence cannot be exercised conscientiously in light of the nature and circumstances of the crime and all relevant circumstances.
Before exercising the option, a balance sheet of aggravating and mitigating circumstances must be drawn out, with the mitigating factors given full weightage and a just balance created between the aggravating and mitigating circumstances.

However, in order for a court to apply these guidelines, it must first ask and answer the following two questions:

Is there something unusual about the crime that makes a life sentence insufficient and necessitates the imposition of a death sentence?
Are the circumstances of the crime such that there is no alternative but to impose a death sentence even after giving maximum weight to the mitigating circumstances that speak in the offender’s favour?

And the court must evaluate if the case fits into the category of “rarest of rare case” and so warrants the death penalty, based on the circumstances of the case and the responses received to the questions given.

Human rights

The possibility of a life-sentenced prisoner escaping is not unknown in Indian prison history. In the context of this situation, the question of society’s overall safety arises. Under the guise of human rights, a convicted criminal’s potential threat to society cannot be avoided. Furthermore, it is absurd to grant “human” rights to criminals who have lost any sense of humanity. This is especially true for offenders who are unable to be reformed. These offenders do not have a right to life because of the horrible acts they have done, which put other people in danger.

Question of morality

While abolitionists argue that it is unethical for the state to take a person’s life, the same argument may be made for the opposite. It implies that the presence of capital penalty implies that the state accords individual dignity to prisoners by considering them as individuals capable of choosing their own paths and accepting full responsibility for their conduct. If capital punishment is abolished on the grounds of immorality, it is equivalent to treating criminals as animals who lack morality and must be absolved for even the most horrible crimes they have committed.

Arguments in favor of the abolition of death penalty

Execution of innocent people

Innocent individuals have been executed in the past and will continue to be executed in the future. No matter how advanced a legal system is, it will always be vulnerable to human errors. Between 2000 and 2014, the Supreme Court and high courts acquitted a fifth of individuals sentenced to death by trial courts. That’s 443 individuals who were sentenced to death but were later determined to be innocent of all accusations.

Arbitrariness

The possibility of the death penalty being applied arbitrarily cannot be ruled out. The death sentence is frequently used disproportionately on the poor, minorities, and members of racial, ethnic, political, and religious communities. According to the National Law University Delhi’s Death Penalty India Report 2016 (DPIR), approximately 75% of all convicts sentenced to death in India are from socio-economically underprivileged categories, such as Dalits, OBCs, and religious minorities.

Inhumane

Human rights and dignity are incompatible with the death penalty. The death sentence is a violation of the right to life, which is the most fundamental of all human rights. It also infringes on the right not to be tortured or subjected to other brutal or degrading treatment or punishment. Furthermore, the death penalty degrades the basic dignity of every human being.

Deterrence

The death sentence does not have the deterrent effect that its supporters claim it does. “There is no solid proof of the death penalty’s deterrent value,” the United Nations General Assembly has stated (UNGA Resolution 65/206). It’s worth noting that the effectiveness of the death penalty in preventing crime is being seriously questioned by a growing number of law enforcement experts in many retentionist states.

Public opinion

The public’s support for the death penalty does not necessarily imply that the state has the authority to take a human being’s life. There are unmistakable historical precedents where majorities of people supported terrible human rights atrocities, only to be roundly denounced later. Leading people and politicians have a responsibility to emphasise the incompatibility of capital punishment with human rights and dignity. It is important to emphasise that popular support for the death sentence is intrinsically tied to people’s desire to be free of crime. There are, however, more effective methods for preventing crime.

The current scenario in India

Validity of death penalty in India

There are a total of 404 people on death row as of December 31, 2020, with Uttar Pradesh having the highest, with 59, Maharashtra having 45, and Madhya Pradesh having 37. Andhra Pradesh has the fewest death row inmates, with only two. Article 21 of the Indian Constitution guarantees everyone’s fundamental right to life and liberty. It goes on to say that no one’s life or personal liberty can be taken away from them unless they follow a legal procedure. This has been interpreted legally to suggest that if a procedure is fair and valid, the state can deprive a person of his life by enacting a law. While the central government has stated that the death penalty will remain in place as a deterrent and for those who pose a threat to society, the Supreme Court has also affirmed the constitutional legality of capital punishment in “rarest of rare” circumstances. The Supreme Court upheld the constitutional legitimacy of the death penalty in three cases: Jagmohan Singh v. State of Uttar Pradesh (1973), Rajendra Prasad v. State of Uttar Pradesh (1979), and Bachan Singh v. State of Punjab (1980). It stated that a convict can be sentenced to death if the capital penalty is established in the law and the method is fair, just, and reasonable. This will only happen in the “rarest of rare” instances, and judges should give “exceptional reasons” when sentencing someone to death.

Rarest of rare

The criteria of what constitutes the “rarest of rare” were put down by the Supreme Court in Bachan Singh v. State of Punjab, a landmark decision (1980). The Supreme Court established some broad illustrative criteria, stating that it should be issued only when the alternative of a life sentence is “unquestionably foreclosed.” To reach this conclusion, the court was given complete discretion. The Supreme Court, on the other hand, established the notion of balancing, aggravating and mitigating circumstances. A balance sheet of aggravating and mitigating circumstances in a specific case must be constructed to determine whether justice will be served if a sentence other than death is imposed.

The Supreme Court ruled that two key questions may be asked and answered. First, is there something unusual about the crime that makes a life sentence insufficient and necessitates the death penalty? Second, are the circumstances of the crime such that there is no other option than to inflict the death penalty, even after giving the most weight to the mitigating circumstances that speak in the offenders’ favour.

Mercy petitions

The Indian government’s Ministry of Home Affairs has prepared a “Procedure Regarding Petitions for Mercy in Death Sentence Cases” to help state governments and prison officials deal with mercy petitions presented by death row convicts. In the case of Shatrughan Chauhan v. Union of India (1947), the Supreme Court stated that before deciding on mercy pleas, the Home Ministry considers the following factors:

The accused’s personality (such as age, sex, or mental deficiency) or the circumstances of the case (such as provocation or similar justification);
Cases in which the Appellate Court expressed doubts about the reliability of evidence but still decided on conviction;
Cases in which it is alleged that new evidence is obtainable primarily to determine whether a new investigation is warranted;
Cases in which the High Court reversed acquittal.
Is there a difference of opinion among the High Court Judges that requires a referral to a larger bench?
Evidence consideration in determining responsibility in a gang murder case.
Prolonged inquiry and trials, etc.

When the actual actions of the Ministry of Home Affairs (on whose recommendations mercy petitions are considered) are examined, it is clear that these standards were not followed in many cases. In a number of situations, Writ Courts have looked into how the executive has handled mercy requests. In reality, the Supreme Court considered 11 writ petitions contesting the executive’s denial of the mercy petition as part of the Shatrughan Chauhan case.

Global perspective

In 2007, the United Nations proposed to all of its member countries that the death penalty be abolished for all crimes. India, as well as a number of other countries, including the United States, have rejected this plan.

In 2003, the World Coalition Against the Death Penalty declared October 10th to be International Day Against the Death Penalty. The European Union, the United Nations, and Amnesty International are among the non-governmental and international organisations that support it. Each year, it focuses on a different subject, highlighting concerns such as living circumstances, mental health, poverty, and narcotics, all of which are related to the death penalty.

The death penalty is one of the most controversial issues in the world, and it is a topic that is constantly being debated. Over 70% of the world’s countries have abolished capital punishment in law or practice, according to the Death Penalty Information Center. According to Amnesty International, by the year 2020, 108 countries will have abolished the death sentence in law for all crimes, and 144 countries will have abolished it in law or practice.

In the last ten years, 28 nations have practically abolished the death penalty by not executing anyone; 55 countries still have the death penalty for ordinary crimes.

According to Amnesty International, 1,477 people have been sentenced to death in 54 nations throughout the world. In addition, 483 executions were recorded in 18 nations. China, Iran, Saudi Arabia, Iraq, and Egypt were the countries with the most executions. It is crucial to note, however, that secrecy prevents proper reporting of executions, and hundreds more could be carried out each year.

The following are some of the 55 countries that still use the death penalty: Bangladesh, China, Egypt, Ethiopia, India, Indonesia, Iran, Japan, Nigeria, Saudi Arabia, South Korea, Sri Lanka, Taiwan, and the United State.

Alternative punishments

As a response to challenges presented in death cases, the Supreme Court has enshrined the punishment of “full life” or a life sentence of a set number of years. In Swamy Shraddhanand v. the State of Karnataka (2008), the Supreme Court, in a three-judge bench ruling, provided the groundwork for this developing punishment alternative as follows:

The situation can be viewed from a somewhat different perspective. There are two dimensions to the question of sentence. A sentence can be excessive and unnecessarily severe, or it can be woefully lacking. When an appellant comes to this Court with a death sentence imposed by the trial court and confirmed by the High court, the Court may determine, as it did in this instance, that the case falls just short of the rarest of the rare, and may be hesitant in upholding the death sentence. However, given the nature of the crime, the Court may strongly believe that a sentence of life in prison with remission, which generally works out to a term of 14 years, would be disproportionate.
Furthermore, the formalisation of a distinctive form of sentencing, though for a very small number of instances, will have the significant benefit of having the death penalty on the law book but using it as infrequently as possible, in the rarest of cases.

The observations in the Swamy Shraddhanand case have been followed by the Court in a number of cases, including Haru Ghosh v. State of West Bengal (2009), State of Uttar Pradesh v. Sanjay Kumar (2012), Sebastian v. State of Kerala (2015), and Gurvail Singh v. State of Punjab (2013), where full life or a fixed number of years has been awarded instead of the death penalty.

Other alternatives include

Life imprisonment without parole

Although capital punishment is the toughest form of punishment, a criminal must still be punished for the offence he commits. One of the options may be life imprisonment without parole, which means the offender would be imprisoned for the rest of his life without the possibility of parole, which would allow them to leave the prison only after serving a portion of their term. Prisoners can also be sentenced to an indeterminate length of imprisonment, in which the prisoner is condemned to prison for a set period of time but is only guaranteed release after a review.

Usage of resources towards rehabilitation

Another option is to move resources away from the death penalty and toward rehabilitation programmes or support for both victims and convicts.

Occupation without remuneration

As death penalties are only used in the most extreme circumstances involving the most heinous offences, the punishment should be served equally but not lead to someone’s death. In such instances, the inmates could be hired for low-wage occupations, increasing productivity while also helping the economy in some way. Cleaning roadways, building sites, secretarial work, and other such duties should not be paid. This might be beneficial to both the economy and the government because they would receive free labour, achieving two goals: making criminals face harsher penalties and saving money to invest in health or education sectors.

Conclusion

The concept of capital punishment is centuries old and has been used in every community throughout history. Despite the fact that times have changed and society has progressed, this practice is being carried out in the twenty-first century. The most severe type of punishment for the most heinous crimes, such as murder, rape, waging war, and acts of terrorism, is a capital penalty, which is only applied in the rarest of circumstances. The death penalty is when a person’s life is taken away because of a crime he has committed. Although it is still used in society today, it has been eliminated in the majority of countries.

For years, capital punishment has been a contentious issue not only on a worldwide level but also on a national level in India. As the death penalty is painless and speedy, it serves to preserve resources that might otherwise be wasted or could be employed elsewhere if wrongdoers were just imprisoned or confined behind bars. Given that India’s prisons are currently overcrowded, their basic needs for survival consume a significant portion of the economy. Since convicts have human rights, it is the government’s responsibility to protect them. The primary goal of the death sentence is deterrence, that is, to prevent an individual from committing a similar crime in the future, as well as to deter others from doing so by displaying severe repercussions. There are extremely few opportunities to avoid the repercussions of wrongdoing. The fact that Article 21 of the Indian Constitution, which stipulates, “No person shall be deprived of his life or personal liberty…”, is a contradiction to the approval of a death sentence because taking someone’s life is against Article 21 of the Constitution.

Due to the difficulty of seeking justice in a country like India with so many cases awaiting, there have been instances where innocent persons have been sentenced to death. Rehabilitation is required in addition to the goals of prevention and deterrence. A criminal’s opportunity of rehabilitation is taken away when he or she is sentenced to death. This type of punishment is akin to putting a full halt to an individual’s life. It’s also worth noting that while death penalties should reduce the number of crimes committed, crime rates have risen in recent years, along with the severity of offences. As a result, based on the statistics, the motivation for capital punishment appears to be ineffective.

A sentence like capital punishment should be substituted by alternatives like those stated above in a country like India, where the Constitution protects the human rights of 1.3 billion people. Although capital punishment is terrible, it can also be ineffectual, resulting in the deaths of innocent individuals. Since god gave us life, only god, not the state, has the authority to take it away from us. Taking all of this into account, new appropriate regulations should be created to ensure the successful execution of alternatives to capital punishment, as well as advice from professionals.

References

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Trade secret : when should the level of confidentiality be lowered

By

Abanti Bose

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February 6, 2022

0

This article is written by Himanshu Mishra, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Tanmaya Sharma (Associate, LawSikho), Ruchika Mohapatra (Associate, LawSikho) and Arundhati Das (Intern at LawSikho).

This article has been published by Abanti Bose.

Table of Contents

Introduction

KFC spices, McDonald’s sauce, Coca Cola’s secret formula, and the Google search algorithm- these are all examples of some of the most heavily guarded trade secrets in the world. This business information is important for a company’s existence and trade secrets are among the most commercially valuable assets in a business. The value of trade secrets is often said to be derived from the extent to which they are protected. In this article, we will analyse under what circumstances the level of confidentiality can be lowered for trade secrets and whether lowering the confidentiality level would be beneficial for a business, or whether it would reduce its economic value.

What is a trade secret?

Colorado‘s Trade Secrets Act defines a trade secret as the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, improvement, confidential business or financial information, the listing of names, addresses, or telephone numbers, or other information relating to any business or profession which is secret and of value. To be a trade secret, the owner thereof must have taken measures to prevent the secret from becoming available to persons other than those selected by the owner to have access thereto for limited purposes.

It is a practice or process that is extensively protected by the company. Its secrecy gives an enterprise a competitive edge over its competitors or provides value to its customers and is generally a product of the company’s own research and development. Unlike a patent, it is not known to the public. Only one or two executive members or a select few people of a company have access to such information.

What is confidentiality?

Confidentiality is a set of rules or promises that limits the access or places restrictions on certain types of information, including private information. Only people with the proper authorization have the right to access the information. This is referred to as a ‘need-to-know’ basis. Information that isn’t generally known to the public and would not ordinarily be accessible to competitors, except through illegal or improper means, falls under the domain of confidential information.

Importance of trade secrets

To keep your critical business and operational information safe from competitors, you need to stay up-to-date with the latest trends and developments in your industry. The reason why it is so crucial for business owners to protect their trade secrets is that it is their key selling point.

Information that is a trade secret is protected by law, but some of them are discussed below:

Business owners spend years and billions of dollars to develop new products and services. Without adequate trade secret protection, a competitor would easily be able to copy their creation; rendering the expense futile. Developing a new medicine can cost millions or even billions to a pharma company; which is why trade secret protection is so crucial.
Technologies are evolving rapidly, which means information leaks easily.. With the advancement in technology, secret information has become more vulnerable nowadays. Trade secrets are no longer kept on paper or in a secure safe as they used to be.
We live in a hyperconnected globalized world where information, ideas, and goods flow seamlessly across national borders within a very short period. Businesses spend a great deal of time and resources developing new products and services, only to discover that their competitors in other countries are copying them and reaping the rewards without punishment.
Almost every company has a trade secret that provides them with a competitive advantage over their competitors. Due to the lack of legislative definitions, the scope of trade secret definition has widened. For example, the number of federal trade secrets cases has increased dramatically in the USA since the passage of DTSA (Defend Trade Secret Act).

Advantages of having a trade secret

Customer lists, recipes, formulas, software, and unpatented (but not necessarily unpatentable) inventions are examples of trade secrets. Google’s unique search algorithm, the New York Times “Best Seller List” ranking system, the chemical formula for WD-40, and the recipes for Twinkies, Thomas’ English Muffins, and Mrs Field’s chocolate chip cookies are all well-known trade secrets. Business owners of these well-known items can benefit from trade secret protection not only in terms of preserving their intellectual property rights but also in terms of some advantages that a patent may not provide. There are several benefits to protecting a trade secret, which makes it popular among business owners.

● Duration- Generally, patents in India last 20 years whereas trade secrets are not limited in time.

● Cost- Trade secrets do not require any registration but keeping the information confidential involves a high cost.

● Abstract ideas- If a method or process is drawn to an abstract idea, it will not be qualified for a patent but as long as the data or ideas are kept secret, they can be protected as trade secrets.

● Popularity- Obtaining a trade secret can create popularity and advertising marketers can create buzz.

● A trade secret does not require compliance with formalities and public disclosures.

Points of concern

● Independent discovery of the secret without using illegal methods or violating state or contract law is quite possible in today’s day and age. For example, reverse engineering.

● It is possible for a trade secret to be patented by someone else who developed the relevant information using legal means.

● Due to the nature of trade secrets, selling or licensing them is difficult.

● Trade secrets are not a statutory right in most countries, so the level of protection varies among them.

● If the secret is made public, then it is hard to keep it a secret since everyone would have access to it, and would be able to use it at their discretion.

Types of agreement/documents required for protecting trade secrets

● Injunction relief agreement.

● Non-disclosure agreement.

● Termination of agreements and statements.

● Non-compete and Employee Confidentiality Agreement.

● Applicability of post-employment agreement.

● Authorized disclosure by the Board of Directors of the company.

● Invention assignment agreement and its applicability.

Governing laws in India

In India, there is no explicit law that protects trade secrets and confidential information. Indian courts and tribunals, on the other hand, protect trade secrets, confidential information, and business know-how. Under common law, a misappropriation action can provide broad protection for trade secrets. Trade secrets can be misappropriated if there is a breach of confidence or if a third party has unlawful access to confidential information. This misappropriation can occur either by misappropriation of confidential information or by trickery or theft.

In the case of John Richard Brady vs Chemical Equipment P Limited, the Delhi High Court invoked a wider equitable jurisdiction in order to grant an injunction in the absence of a contract.

Under contract law

Under the basis of equity and contractual obligation, Indian courts have maintained trade secret protection. The provision relating to restraint of business in Section 27 of the Indian Contract Act makes this clear. This provision, which is broad in scope, renders all trade restraint agreements void. The section was rigorous in its invalidation of restraints at first, but it was adopted when trade was still developing, and the purpose of the section was to defend trade restraints. Later, the Law Commission of India’s involvement in 1958 and its suggestion to allow reasonable restraint came into play.

When should the level of confidentiality be lowered?

The increase of artificial intelligence would also increase algorithmic processing. Algorithms structure the core of our information system. Currently, many online services are provided by private companies, and even government agencies are dependent on algorithms. In addition to ensuring principles such as fair competition, non-discrimination, and access to information, regulators should be permitted to assess trade secret information/data. The degree of scrutiny has to be proportional to the scale of facts processed and the effect it has on the public. We can examine from the Cambridge Analytica case the manner in which the data of Facebook users have been used to manipulate the US election.

Allowing trade secret records to pass scrutiny will supply extra room to data processed beneath the hood and will additionally erode the rule of law. In general, trade secret law prevents the people who are best suited to understand technology from deploying it, even if the original developers have abandoned it long ago. Information is effectively trapped inside the company.

In the medical field, drugs initially developed for one purpose sometimes prove beneficial in other contexts as well. This is particularly problematic since the best uses for innovation are hard to predict ahead of time. Despite a company’s decision not to pursue an invention, a third party might still find a use for it. However, a secret that is locked away in a company’s vault will never be revealed to that higher-value user.

Allowing for exceptions to trade secrecy in the public interest

Proponents of trade secrecy argue that by limiting the flow of proprietary information, trade secrecy protects innovation. Many types of data, despite being claimed as trade secrets, are clearly not trade secrets.

Trade secrecy exceptions for public interest can help ensure that data can be shared to benefit public health. There are at least four ways to codify these exceptions:

Mandatory, proactive disclosure requirements for certain health and safety information can benefit the public.
Excluding certain public health information from the scope of trade secret protections can benefit the public.
Giving public health weight in balancing tests can help the public good.
Inappropriate cases, developing mechanisms such as involuntary licences or intellectual property “pools” can override previously established ones.

Conclusion

Since trade secrets and techniques add top-notch prices to the business, they should be handled with proper care and precision. A middle path should be found to assess the impact of trade secret information without publishing the details of the business model to everyone as McDonald’s doesn’t need to disclose the secret sauce recipe on the front web page of a newspaper for the regulators to determine its fitness impacts. If a trade expires or is abandoned it should be in the public domain. It will encourage others to develop the technology further for the public interest.

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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5 legal steps to take after a car accident

By

Rachit Garg

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February 5, 2022

0

Table of Contents

Introduction

Car accidents happen unexpectedly, and if such an unfortunate event occurs, do you know what you need to do after the collision?

Unfortunately, because of the adrenaline rush and extreme state of panic, most drivers may not know how to properly address the accident legally, affecting their claims. That’s why it’s important to know the essential information that will protect your rights.

However, even if you know what to do, it may not go as successfully as you think if you fight for your case alone, especially in handling insurance companies. Therefore, it would be beneficial for you and your case to hire a personal injury lawyer who will explain everything you need to know about your case and do everything to win it.

If you’re looking for a lawyer, you may visit https://avagiolaw.com/personal-injury-lawyer-oshawa/ or your local law firms. Going back to the topic, here are five legal steps you will need to do immediately after a car accident:

Check everyone’s safety

Safety should be your top priority. The first thing you need to do after a car collision is to assess everyone’s condition. If you have sustained injuries, it would be best to call an ambulance immediately for medical support or call anyone nearby for help.

Also, because of adrenaline, you may not feel as if you’re suffering from an injury, such as internal bleeding. Therefore, you will need to get yourself assessed by a medical professional. Seeking immediate medical care will not only save you but also ensure your rightful compensation.

You may use your medical test results as evidence for your claim, therefore strengthening your case. However, you need to make sure that your doctor is on your side. If you fail to follow their instructions and worsen your condition, they might state this in court, reducing the amount you can receive. So, obey them as much as possible.

Assess the accident scene

After ensuring everyone’s safety, the next thing you need to do is assess the scene. Here are the things you would need to do:

Turn on your emergency lights and hazards so that others will be aware that an accident took place.
If it’s safe to move your car so that others may pass easily, you may do so. However, if it may pose a greater danger, leave it as is, and let the authorities handle it.
Using your smartphone, take photos and videos of the entire accident scene, including all the damages.

Gather as much evidence from the scene if you can. This is a critical step you may need to do to boost your chances of winning the settlement case should you need to file a legal action someday.

Call the authorities

After the initial steps, the next thing you need to do is call authorities for help. When calling 911, the dispatcher may ask you some questions regarding the incident. When answering the questions, state only relevant information and as much as possible, don’t mention facts you may not be sure of, such as the one responsible for the accident.

After making the call, the dispatcher will send out police officers immediately to investigate the scene. When they arrive, they will ask questions to everyone included in the accident to create a police report. After that, make sure to have a copy of the report to help your legal team in their investigation. It may not be admissible as evidence in court, but it helps determine which party is at fault.

Gather information

Exchange information with the other party involved in the accident and make sure to get the following important details, such as:

The driver’s full name, address, and contact information
The driver’s insurance company and policy number
The driver’s license and plate number and other details, such as car year of production and model.

Furthermore, to increase your chances of winning the lawsuit or getting the insurance claim, you, together with your lawyer, will have to collect essential pieces of evidence such as:

Inspection reports regarding the value of all the damages to your vehicle
Police reports
Medical records, including bills, doctor’s notes, list of medications, hospital orders, and other documents from various health professionals involved in treating your injuries
Loss of income records, especially if the accident significantly affected your ability to work.

If you can’t gather these details because of your injuries, don’t worry, your lawyer may get them for you. But, as much as possible, you need to work with your lawyer to achieve better results for your case.

Hire a lawyer

Hiring a personal injury lawyer is one of the most important things you need to do if you want your case to be as successful as possible. The legal system is full of complex concepts that can be difficult for the general people to understand.

Also, you don’t have to worry about talking to your insurance companies because your lawyer will do it for you, making sure you receive what’s rightfully yours.

Furthermore, with the help of your lawyer, you will be able to file a case smoothly, without going over the statute of limitations. With that said, you would have no reason to decline any help from a legal professional.

Final words

Car accidents may leave you with devastating and catastrophic injuries. That’s why the initial steps you would take are crucial in preserving your rights to fair compensation. The first thing you need to do after an accident is to call for medical help. Afterward, you may proceed to call authorities and gather information.

However, it might be impossible to win a lawsuit all by yourself. Therefore, you need to hire a lawyer who knows all the legal proceedings and will fight for you. So, to achieve better results for your case, call your local personal injury lawyer and start preparing for your legal battle.

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N.R. Dongre and Ors. v. Whirlpool Co. and Anr., 1996 : case study

By

Rachit Garg

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February 5, 2022

0

This article is written by R Sai Gayatri, from Post Graduate College of Law, Osmania University. This article deals with the landmark case of N.R. Dongre and Ors. v. Whirlpool Corporation and Ors. concerning transborder reputation, passing off and well-known marks.

Table of Contents

Introduction

The trademark law in India enables innovators to have exclusive rights over their products or service by providing them a unique identity. Section 2(1)(zb) of the Trademarks Act, 1999 defines a trademark as a mark that is capable of being represented graphically to identify and distinguish the goods and services of a particular owner from those of the others. A trademark provides exclusive rights and various advantages to its owners such as an increase in the sales, advertisement of the product or service, establishing the reputation of the product or service, etc.

It is an established principle under the trademark law in India that whoever uses the trademark first will be considered the owner or the creator of it. This principle is known as the doctrine of prior use. It is a judicial principle which states that the prior user of the mark will have superior and exclusive rights against that of a registered proprietor claiming for such mark. In this article, we will discuss the landmark case of N.R. Dongre and Ors. v Whirlpool Co. and Anr., 1996 wherein Whirlpool claimed a mark based on the principle of ‘prior use’ and its transborder reputation stating that the goods being marketed by using such mark gave the impression that such goods belong to Whirlpool.

Provisions under Indian Trademark Law

Section 28 of the Trademarks Act, 1999 provides an exclusive right to use a trademark if such trademark is registered for trade purposes, however, an exception to this provision is mentioned under Section 34 of the Trademarks Act, 1999. This provision states that the rights of an actual owner of the mark cannot be violated on an identical trademark which has been registered by another. This means that the rights of the original owner or creator of the mark will be protected by the Trademarks Act, 1999 even if not registered, however, such mark must be in use prior to the date of registration done by the proprietor.

Position of transborder reputation in India

Section 35 of the Trademarks Act, 1999 deals with the concept of transborder or spillover reputation. It provides protection to foreign trademarks based on their reputation at the global level. By virtue of this Section, the Indian Courts have dropped the conventional approach which required the registration or use of a trademark in India for establishing a case of passing off. By recognizing the ownership of a trademark by a foreigner on the basis of the reputation of their goods or services in a foreign land, the concept of transborder reputation has been sown in the trademark law of India. This principle of transborder reputation was dealt with extensively in the case of N.R. Dongre and Ors. v Whirlpool Co. and Anr., 1996.

Details of the case

NAME OF THE CASE	N.R. DONGRE AND ORS. V WHIRLPOOL CO. AND ANR., 1996
CITATION OF THE CASE	(1996) 5 SCC 714
NAME OF THE COURT	HON’BLE SUPREME COURT OF INDIA
PLAINTIFF-RESPONDENT	WHIRLPOOL CORPORATION AND ANOTHER
DEFENDANT-APPELLANT	N.R. DONGRE AND OTHERS
HON’BLE BENCH	JUSTICE JS VERMAJUSTICE K VENKATASWAMI
DATE OF JUDGEMENT	30^TH AUGUST 1996

Facts of the case

The Whirlpool Corporation was the original and prior user of the trademark ‘whirlpool’ since the year 1937. The said trademark was used for their electrical goods which included washing machines. Whirlpool Corporation got its trademark registered in India in the year 1956 which was renewed regularly, however, in the year 1977 the respondents failed to do the renewal on account of which the registration expired. The Whirlpool Corporation, a multinational company incorporated in the United States and TVS Whirlpool, a company incorporated in India (respondents, initially the plaintiffs) entered into a joint venture in the year 1987 to sell machines. Prior to this, the machines were sold to the US embassy in India bearing the mark of whirlpool.

In the year 1986, N.R. Dongre and others (appellants, initially defendants) applied for the registration of the trademark ‘whirlpool’ with the registrar for selling certain goods which included washing machines and in the year 1988, the said trademark was advertised for the first time in the trademark journal. Subsequently, an objection was raised by the respondents which was dismissed by the registrar on the basis of lack of reputation and non-usage of the trademark ‘whirlpool’ in India. It was further said that the usage of the trademark ‘whirlpool’ by N.R Dongre for selling his goods would not create any confusion in the market.

The appellants herein were granted the registration in the year 1992. In 1994, the appellants invited dealers for washing machines under the trademark of whirlpool. The respondents purchased a washing machine from the appellants and discovered that it is of inferior quality when compared to the washing machines manufactured by the respondents. Aggrieved by this, the respondents filed an action for passing off and grant of an interlocutory injunction. The learned single judge of the Delhi High Court granted a temporary injunction in 1994 and thereafter, on appeal, a division bench of the same Court affirmed the decision of the learned single judge in the year 1995. Aggrieved by this, the appellants herein approached the Hon’ble Supreme Court.

Issues raised in the case

Whether or not the action for passing off is maintainable against the registered proprietor of a trademark by the respondents who are not the registered proprietors of the ‘whirlpool’ trademark concerning washing machines?
Whether or not the respondent acquired a transborder reputation?
Whether such transborder reputation transcends the territorial boundaries or not?

Contentions of the parties

Contentions of the appellants

The main contentions put forward by the appellants before the Court are –

That the respondents have no reputation in India provided that the mark ‘whirlpool’ was not in use within the territory of India. Since there is a lack of reputation and non-usage of the mark in India, the respondents have no right to stop the appellants from using the said mark.
That the usage of the trademark ‘whirlpool’ by the appellants for selling their goods would not create any confusion among the people as the said mark was not being used in India.
That there is a culpable delay, laches and acquiescence on part of the respondents. The appellants also stated that the respondents have abandoned the mark themselves.

Contentions of the respondents

The main contentions put forward by the respondents before the Court are –

That the appellants only registered for the mark ‘whirlpool’ in 1986, however, the respondents have been using the said mark since 1956. The registration lapsed in 1977 but it is still prior to the earliest claim made by the appellants in 1986.
That the washing machines which are being manufactured by the appellants are of inferior quality when compared to the ones manufactured by the respondents. If the sale of such inferior quality washing machines is allowed then it will most likely affect the goodwill and reputation of the respondents.
That there is a lack of evidence that can be relied upon to establish that the appellants have in fact marketed the washing machines manufactured by them for any considerable period of time prior to the date of grant of injunction.

Judgment of the case

The Hon’ble Supreme Court observed that the Whirlpool Corporation was the prior user of the trademark since the year 1937, however, the appellants applied for the said trademark only in 1986. The Court stated that the principle on which passing off action is based states that no person must sell his goods as the goods of another.

The Court further stated that ‘whirlpool’ is the registered trademark of the respondents since 1937 in 65 countries wherein they have continuously been in business. It was also noted that even though whirlpool products were only sold to the US embassy in India, however, the brand name ‘whirlpool’ was often advertised in international magazines having wide circulation in India and as a result, it was gaining a well-known reputation in India. Subsequently, the respondents acquired a transborder or spillover reputation with ‘whirlpool’ mark by which people identified washing machines and other such electrical goods.

The Court also stated that since the mark ‘whirlpool’ has become synonymous with washing machines and other such electrical appliances of the respondents, the people intending to buy their goods will most likely be confused or deceived if the appellants continue to sell their goods under the same mark ‘whirlpool’. If the appellant is allowed to sell his goods under the same mark then the respondents might suffer heavily as the goods sold by the appellants are of inferior quality than that of the respondents. Based on the above-mentioned grounds, the Apex Court upheld the decision of the Delhi High Court and dismissed the appeal with a cost of Rupees 10,000.

Few case laws referred to by the Court

Century Traders v. Roshan Lal Duggar & Co., 1977 – Century Traders i.e, the appellant manufactured voiles which were processed by Roshan Lal Duggar Co. i.e, one of the respondents. This arrangement went on for a period of two years i.e, from the year 1973 until 1975. The responsibility of the respondent as directed by the appellant was to add the trademark ‘Raja Rani’ on the voiles after they were processed. Later in 1976, the voiles manufactured by the appellant were being processed by another party. During the same year, the appellant found out that the other two respondents were using a similar mark for their voiles that were processed by Roshan Lal Duggar Co. and aggrieved by this, the appellant filed a suit in the Delhi High Court. The court ruled that neither the appellant nor any of the respondents can claim a proprietary interest in the said mark as there is prima facie evidence of earlier registrations of the same mark. Having no other choice, the appellant filed an appeal against the order of the Delhi High Court. After considering the appeal, it was held that in an action of passing off the registration of a mark is irrelevant and to establish a case of passing off, the manufacturer has to prove the prior use.

Kamal Trading Company v. Gillette UK Limited, 1988 – The Gillette Company and its subsidiaries did business at a global level which included the manufacturing and sale of safety blades, shaving brushes, shaving cream, safety razors, etc since 1901. The respondent herein being a subsidiary of the Gillette Company, had been using the registered trademark ‘7 O’CLOCK’ for their goods since 1913. Later, the respondent entered into a collaboration agreement with an Indian company i.e, Indian Shaving Products Ltd., for the manufacture and sale of safety razor blades in India. The said agreement was entered into because of the import restrictions imposed after 1958. However, as per the said agreement, the said Indian company was allowed to use the trademark ‘7 O’ CLOCK’ including the word ‘EJTEK’.

In the year 1985, the respondent realized that the appellants were selling toothbrushes bearing the trademark ‘7 O’ CLOCK’. Consequently, the respondent filed a suit before the District Court for an injunction to restrain the appellants from manufacturing, selling or offering for sale the toothbrushes and any other similar goods bearing the trademark ‘7 O’CLOCK’. The District Court granted an interim injunction in favour of the respondent and restrained the appellants from using the trademark ‘7 O’CLOCK’. As a result, the appellants filed an appeal before the Hon’ble High Court of Bombay. In this case, it was held that even though the goods of a particular manufacturer are not available in a particular region for a certain period of time the goodwill or reputation of such manufacturer still exists. More importantly, it is irrelevant as to whether the goods are being sold or not in a country, if the manufacturer by means of advertisements in media makes it known to the people that a particular product belongs to their brand. This case established that trading in India is not a mandate to protect one’s goodwill.

Wander Ltd and Anr. v. Antox India P. Ltd., 1990 – In this case, there was a dispute regarding the trademark ‘Cal-De-Ce’ (a vitaminsed calcium gluconate tablet) between Wander Ltd. i.e, the appellant and Antox India P. Ltd., i.e, the respondent in the matter of granting an injunction. It was held that in an appeal before the Division Bench against the exercise of discretion by the Trial Court, the appellate court shall not interfere with the exercise of such discretion of the Trial Court and substitute its discretion except where such discretion has been exercised arbitrarily, or capriciously or perversely or where the court has failed to act upon the settled principle of law regulating the grant or refusal of interlocutory injunctions.

WWF International v. Mahavir Spinning Mills Ltd, 1994 – An action for passing-off was brought by the plaintiff, i.e, World Wildlife Fund (WWF) International to stop the defendant, i.e, Mahavir Spinning Mills Ltd. from using the plaintiff’s mark and artistic device in respect of their threads. In this case, it was held that merely because a party has never manufactured any products in India, it cannot be restricted from acquiring the reputation or goodwill in its trademark. However, before seeking relief for passing off, a manufacturer has to prove that a certain reputation or goodwill exists in their mark among the people of the country.

William Grant and Sons v. McDowell & Co. Ltd., 1995 – William Grant & Sons Ltd., the plaintiff filed an action to restrict McDowell & Co. Ltd., the defendant from copying the trade dress of GLENFIDDICH Scotch whisky, a product of the plaintiff. The plaintiff claimed passing off and trademark infringement alleging that the defendant used a label with a similar trade dress as the GLENFIDDICH label, that includes a green bottle, stag, thistles devices and a black cylindrical carton. However, the defendant denied the allegations of the plaintiff regarding passing off and trademark infringement. In this case, it was held that for the grant of the injunction, it is essential that some material discloses the fact that the public associates the product or mark in dispute with that of a particular manufacturer. This case deals with the general nature of trade dress and what constitutes passing off.

Critical analysis

In the present case of N.R. Dongre and Ors. v Whirlpool Co. and Anr., 1996, the Hon’ble Supreme Court through its division bench held that mere advertisement of a trademark was sufficient enough to establish local use and goodwill even if there is no physical presence of goods in the Indian market. This case clearly supported the transborder reputation concept of a mark even against the registered proprietor of the trademark.

However, the Apex Court through a division bench in the case of Toyota Jidosha Kabushiki Kaisha v Prius Auto Industries Ltd. (2017) came up with an opposing decision. It was stated that the reputation and goodwill of a mark have to be established in the Indian market to attain well-known status in India.

The incongruity established between the cases of N.R Dongre and Pirus Industries is yet to be explained by the Apex Court. Since both the cases were decided by division benches of the Hon’ble Supreme Court, the only way out is to determine this issue by appointing a bench having higher strength than that of a division bench.

Conclusion

For the first time in the Indian legal regime, the concept of well-known marks and transborder reputation was discussed in detail through the case of N.R Dongre and Ors. v Whirlpool Corporation and Anr in 1996. This case laid down that the registration of a trademark is not an essential requirement to establish a successful action of passing off. It further laid down that in case of misuse, the owner of a well-known mark can seek an injunction.

References

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All you need to know about the TRIPS Agreement

By

Shoronya Banerjee

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February 5, 2022

0

This article has been written by Ayush Tiwari, a student of Symbiosis Law School, NOIDA. In this article, the author has covered everything one needs to know about the TRIPS Agreement.

This article has been published by Shoronya Banerjee.

Table of Contents

Introduction

Various intellectual inventions and creativity have a significant impact on the world today. As these innovations and concepts grow more popular and successful, the inventor’s efforts to promote and defend them become increasingly crucial. Beyond just shipping goods across borders, the concept of commerce and what makes trade useful for nations have developed. In today’s international trade, innovation, creativity, and branding account for a significant portion of the value exchanged. How to increase this value and make it easier for the innovation-rich commodities and services to flow across borders have become important factors in development and trade policy.

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement is crucial for promoting trade in knowledge and innovation, resolving intellectual property trade disputes, and ensuring World Trade Organization (WTO) members’ freedom to pursue their domestic goals. The agreement is a formal acknowledgment of the importance of intellectual property and trade relations. Before studying the TRIPS agreement in detail, one should have a brief knowledge about Intellectual Property Rights (IPR).

What are intellectual property rights

“Intellectual Property shall include rights relating to literary, artistic, and scientific works, discoveries throughout all areas of human endeavor, scientific advances, industrial design rights, trademarks, service marks, and commercial names and designations, protection against unfair competition,” states Article 2 of the WIPO (World Intellectual Property Organization) – Central Organization for the Protection of Intellectual Property laws and the UN expert organization.

Intellectual property rights are the rights granted to individuals over the creation of their minds. For a set period of time, they usually grant the creator exclusive rights to use his or her creation. Intellectual property (IP) is a non-tangible asset developed by the human mind. Business organizations may use IP to gain a competitive advantage and drive their growth. Intellectual property ownership interests, like any other property, can be assigned, licenced, or otherwise passed to third parties.

Internationally, intellectual property rights (IPR) are valued and exchanged. The WTO’s TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement recognises the importance of IP in international trade. The TRIPS Agreement establishes basic requirements for member governments’ IPR protection.

The TRIPS Agreement in detail

How it all started?

As intellectual property grew more significant in commerce, the level of protection and enforcement of these rights varied greatly throughout the world, and these variations became a source of stress in international economic relations. New globally agreed-upon trade standards for intellectual property rights were considered as a method to bring greater order and predictability to the market, as well as a more systematic approach to resolving disputes.

The General Agreement on Tariffs and Trade (GATT) was the only multilateral mechanism overseeing international commerce until the World Trade Organization (WTO) was established in 1995. Under GATT, there were eight rounds of negotiations, the first five of which were solely focused on tariffs, while the sixth round included discussions on anti-dumping measures, which included provisions for member nations to control the dumping of goods into their territory by other nations that could harm their economies.

The Uruguay Round was the last GATT round (1986-1994). It was in this session that the first discussions on trade linked to agriculture, services, and intellectual property rights were conducted. All 123 countries that took part in the Uruguay Round, including India, became members of the WTO. WTO now has 164 members, accounting for about 90% of the world’s countries. The World Trade Organization (WTO) is in charge of negotiating and implementing new international trade agreements. It is also responsible for ensuring that the majority of the world’s trading nations comply with the trade agreements they have signed. The WTO is the legal and administrative framework for managing and growing international connections between its 157 members on a multilateral basis. Its goal is to establish fair and secure international trading arrangements in order to stimulate trade and investment and raise global living standards.

The TRIPS Agreement is one of the most significant WTO accords. The Agreement went into effect on January 1, 1995.

What is the TRIPS Agreement about?

The TRIPS Agreement protects intellectual property in trade-related regions to a large extent and is regarded as a comprehensive new framework for intellectual property standards protection. The TRIPs Agreement also has the distinction of being the first legal agreement to address all areas of intellectual property with a number of specific clauses.

The three main issues governed by the agreement are:

Standard– All member states are required to provide a minimum set of criteria for the protection of IPRs in each of the IP categories covered by the Agreement. Each area of IP is addressed in such a way that the major aspects of protection, such as the subject matter sought to be protected, the rights to be granted, and possible exceptions to such rights, as well as the minimum period of protection, are all explicitly stated.
Enforcement– The second set of clauses focuses on domestic processes and remedies for intellectual property rights enforcement. The Agreement establishes a set of broad rules that apply to all IPR enforcement actions. It also includes rules on civil and administrative processes and remedies, provisional measures, particular border requirements, and criminal proceedings, all of which outline the procedures and remedies that must be provided so that the right holders can successfully exercise their rights.
Dispute settlement– Disputes occurring between WTO members over responsibilities emanating from the TRIPS Agreement are subject to the WTO’s dispute resolution processes.

The whole TRIPS Agreement is further divided into seven parts which contain the complex provisions regarding intellectual property:

Part I- General Provisions and Basic Principles (Article 1 to Article 8)

Part II- This part covers the requirements for the availability, scope, and application of intellectual property rights. (Article 9 to Article 40)

Part III- The enforcement of IPRs is the focus of this part. (Article 41 to Article 61)

Part IV: This part covers the procedures for obtaining and maintaining intellectual property rights. (Article 62)

Part V: This part deals with the prevention and resolution of conflicts resulting from the provisions of the Agreement. (Article 63 to Article 64)

Part VI: This part is about transitional agreements. (Article 65 to Article 67)

Part VII: This part of the Agreement deals with a variety of institutional arrangements. (Article 68 to Article 73)

General provisions and basic principles

The essential principles on the national and most-favored-nation treatment of foreign persons are found in Articles 3, 4, and 5, and they apply to all kinds of intellectual property covered by the Agreement. These obligations apply not only to substantive standards of protection, but also to issues relating to the availability, acquisition, scope, maintenance, and enforcement of intellectual property rights, as well as issues relating to the use of intellectual property rights that are specifically addressed in the Agreement. While the national treatment provision prohibits discrimination between a member’s own nationals and those of other members, the ‘most-favored-nation’ treatment clause prohibits discrimination between other members’ nationals. The exclusions authorised under the pre-existing WIPO intellectual property treaties are likewise available under TRIPS in terms of the national treatment commitment. Furthermore, governments have the authority to enact legislation to prohibit right holders from abusing IPR or to challenge practises that unfairly restrict commerce or impede the international transfer of technology, all in accordance with the Agreement’s provisions.

Types of intellectual properties

Copyrights and related rights

The Agreement states that copyright protection only applies to phrases, ideas, techniques, operating methods, or mathematical concepts. Literary, musical, dramatic, photographic, sculptural, architectural, choreography, graphic, motion picture, sound recording, multimedia work, computer programs, and other works are all given copyright. For a certain amount of time, the owner of a copyright has the right to prevent others from duplicating, distributing, making derivative works, performing, exhibiting, or utilising the work covered by the copyright. The essence of copyright is originality, which means that the work was created by the copyright owner or claimant. A work of originality, on the other hand, does not have to be innovative. In copyright law, originality does not entail innovation.

The Berne Convention protects computer programs in both source and object code, and compilations of data in machine-readable or other formats constitute creative works due to the selection or arrangement of their contents and are thus protected by the Agreement. In the case of computer programs and cinematographic works, authors are granted the right to approve or restrict commercial renting of originals or copies of protected works to the public. However, if giving rental rights leads to widespread copying of such works, jeopardising the work’s uniqueness, member governments can revoke such rights. The term of protection extends up to not less than 50 years as per Article 12 of the Agreement.

Trademarks

Article 15 states that any sign, or set of signs, able to distinguish one undertaking’s products and services from other undertakings’, shall be eligible for trademark registration, provided that it is clearly detectable. Such signs, in particular words, characters, digits, figurative components, and colour combinations, as well as any combination of these signs, must be acceptable for trademark registration. According to Article 16, the trademark owner has the exclusive right to restrict third parties from using similar or identical signs for products or services that are similar to those for which the trademark is registered.

Geographical indications

As per Article 22, geographical indications designate a good as coming from a member’s territory, or an area or place within that territory, where the good’s quality, reputation, or other attribute is largely due to its geographical origin. Traditionally, some commercial items have been manufactured in a geographically defined territory. In commercial relations, the geographical indicator becomes the dependable “carrier” of qualifying product features when these items are accredited to certain criteria fundamentally due to their geographical provenance. The purpose and value of geographical indications are subsequently given to trademarks, and they are entitled to legal protection.

Industrial designs

Articles 25 and 26 of the agreement says members must ensure that fresh or unique industrial designs generated independently are protected. The Agreement, which is based on the Paris Convention but goes much beyond it, promises to preserve industrial designs for a minimum of 10 years. When such activities are conducted for commercial objectives, the right holder can ban third parties who do not have the holder’s agreement from producing, importing or selling items that incorporate the protected design.

Patents

According to Article 27 of the agreement, a patent is an intellectual property right (IPR) awarded to inventors. The inventor, as the patent owner, has the right to prevent anybody else from creating, using, selling, or importing the patent-protected invention in a specified region for a set length of time.

The basic criterion of patentability is subject to three exceptions. One is for innovations that are against the public good or morals- this includes inventions that are harmful to human, animal, or plant life or health, or that are substantially harmful to the environment.

Members may also exclude diagnostic, medicinal, and surgical procedures for the treatment of people and animals from patentability.

The length of protection is normally 20 years from the date of filing of the patent application. Member nations could provide specific exemptions to exclusive rights conferred by a patent under Article 21 of the Agreement, given that such exclusions do not unreasonably conflict with a normal exploitation of the patent and therefore do not unreasonably bias the patent owner’s legitimate interests, taking into consideration the legitimate interests of third parties. Furthermore, Article 29 mandates that the patent filing discloses the innovation in a manner that is explicitly clear and complete for a person knowledgeable in the art to carry out the invention. Article 31 of the Agreement contains provisions that allow the government of a member nation to award a compulsory licence for medicines without the patentee’s approval, subject to specific circumstances.

Layout-Designs (Topographies) of Integrated Circuits

Importing, selling, or distributing (for commercial reasons) a secured layout design, an integrated circuit where a secured layout design is implemented, or an article including such a circuit is prohibited under Article 36 of the Agreement. From the date of filing an application for layout designs, the protection offered in this sector of IP is at least ten years. According to Article 37, member countries may limit the length of protection to fifteen years from the date of development of the layout design.

Protection of undisclosed information

The information which is undisclosed is referred to as a trade secret. Article 39 of the Agreement requires member states to provide trade secret protection in accordance with the Agreement’s provisions. TRIPS mandates that member countries should create national legislation to prevent such information from being revealed to, obtained by, or used by third parties without the agreement of the person who is lawfully in possession of it, in a manner that is inconsistent with fair trade practises. Such information must be confidential, have commercial value as a result of its confidentiality, and have been subjected to reasonable efforts to keep it hidden in order to be granted protection.

Control of anti-competitive practises in contractual licences

Members of the Agreement believe that some licensing arrangements or restrictions relating to IPR that restrict competition may have a negative impact on trade and impede technological transfer and dissemination. The clause allows for government discussions in cases where there is an infringement of intellectual property rights that has a negative impact on competition. On some occasions, the TRIPS Agreement waives some of the requirements necessary for a compulsory licence of a patent, such as when the government gives the compulsory licence to correct an anti-competitive activity.

Enforcement

Governments must guarantee that IPR can be implemented to prevent or discourage infringement, according to the Agreement. The methods must be just and equal, as well as not overly cumbersome or expensive. They shall not impose unreasonable deadlines or unjustified delays. People concerned must be allowed to request a court review, an administrative decision or appeal a lower court’s judgement. The TRIPS agreement goes into great detail about how to defend intellectual property rights, including requirements for gathering evidence, interim measures, injunctions, damages, and other penalties. It states that courts must have the authority to compel the disposal or destruction of objects that infringe on intellectual property rights under specified situations. On a commercial scale, wilful trademark counterfeiting or copyright infringement must be prosecuted as a crime. Governments must also ensure that holders of intellectual property rights can get assistance from customs authorities to prevent the import of counterfeit and pirated goods.

Prevention and resolution of conflicts resulting from the provision of the TRIPS Agreement

The TRIPS Council is in charge of the provisions relating to dispute resolution and prevention. The common register, which contains a compilation of laws and regulations, final judicial decisions, and other information pertaining to the Agreement, should be established, Article 63 establishes an obligation to notify laws and regulations to the TRIPS Council or the WIPO. Article 64 of the Agreement outlines processes for preventing and resolving disputes. For this aim, the WTO Agreement’s integrated dispute settlement procedure will apply to TRIPS issues.

Transitional agreements

The TRIPS agreement allowed countries to delay the implementation of its terms for various lengths of time. These timeframes specify the period between when the agreement entered into force (on January 1, 1995) and when it got implemented in member countries. The following are the major transition periods:

Developed countries were given a one-year transition period following the WTO Agreement’s entry into force, i.e. until January 1, 1996.
Developing nations were given an extra four years (until January 1, 2000) to implement the agreement’s provisions, with the exception of Articles 3, 4, and 5, which deal with broad principles like non-discrimination.
Transition economies, i.e. countries in the process of transitioning from centrally planned to market economies, could also benefit from the same postponement (until January 1, 2000) if they fulfilled specific additional criteria.
Least-developed nations were given an additional eleven-year transition time (until January 1, 2006), with the option of an extension. The transition period has been prolonged three times, and now continues until July 1, 2034, or until a member no longer qualifies as a Least Developed Country (LDC), whichever comes first.

Institutional arrangements

Article 68 of the TRIPS Agreement establishes The TRIPS Council. The TRIPS Council oversees the administration of this Agreement, including members’ compliance with their duties under it, and provides members with the opportunity to consult on trade-related aspects of intellectual property rights. It carries out any other obligations that the members delegate to it, including providing any help sought by them in the context of dispute resolution procedures. The TRIPS Council may consult with and obtain information from any source it finds relevant in carrying out its tasks.

Need for the TRIPS Agreement

IP protection was supposed to help not only promote technical innovation but also the transfer and spread of new technology in a way that benefits both its producers and users while maintaining a balance of rights and duties, all with the purpose of increasing social and economic wellbeing. As a result, the TRIPS Agreement’s primary objectives included reducing trade distortions and obstructions by supporting effective and appropriate protection of IPRs, as well as ensuring that measures and processes for enforcing IPRs do not become hurdles to legitimate trade.

Currently, the rise in IP legislative activity, as well as the quick adoption of TRIPS-covered IP rights, demonstrated the TRIPS Agreement’s centrality in the global trade system. The TRIPS Agreement continues to play a key role in facilitating international trade in knowledge, resolving trade issues over IP, and guaranteeing WTO members the latitude to achieve their domestic objectives, while IP is at the core of attempts to obtain benefits from innovation and creativity in today’s global economy.

Advantages and disadvantages of the TRIPS Agreement

Advantages of the TRIPS Agreement

Transparency in IP policy was brought to the world’s attention.
WIPO’s existing international legal system, which was designed and controlled by them, was greatly enhanced by this agreement.
Trade conflicts over intellectual property concerns were reduced by establishing a clear, rules-based framework for resolving disputes.
It has aided in the acquisition and exercise of intellectual property rights, as well as providing a solid platform for the trade in knowledge products.
In developing countries, the number of patent applications is increased

Disadvantages of the TRIPS Agreement

TRIPS mandates high levels of patent protection.
Fertilisers, insecticides, pharmaceutical items, and procedures were not protected by patents, resulting in low-cost food and drugs.
Education and technology transfer were fostered by the lack of copyright protection for informational products.
Jobs in the local imitative industries were lost.
In general, increased prices resulted in significant deadweight losses, with minimal stimulation of local innovation.
Traditional knowledge is not protected in any way.

TRIPS Agreement : a boon or bane for developing countries

The agreement imposes essential and obligatory requirements on signatory member nations to implement basic levels of intellectual property right protection in all of its elements. However, this Agreement has far-reaching implications for developing nations, as rigid intellectual property restrictions stifle the growth of indigenous enterprises in these areas. Intellectual property rights, although vital, must be implemented with caution in developing nations since they can harm the economy, public health, and so on. The principal consequences of the patent protection regime have a deterring effect on the expansion of local sectors, such as pharmaceuticals.

Intellectual property should not be used to thwart the interests of developing nations, such as public health, which is already being harmed. As a result, a re-evaluation is necessary. In addition, when the situation demands them, the exceptions to the intellectual property rights shall be implemented effectively and strictly.

The TRIPS Agreement has had a considerable impact on IPR protection in poor nations but has had a little discernible impact on IPR protection in developed countries. This outcome is consistent with the TRIPS Agreements’ requirements being established to be as near as possible to IPR protection systems already in existence in many developed nations. To comply with the TRIPS Agreement, developed nations did not need to make significant changes to their policies. And also the Nations that rely heavily on exports to countries that advocated for the TRIPS Agreement’s inclusion in the WTO (i.e. developed countries) may take the possibility of retaliatory trade penalties seriously since they stand to lose a lot of money in lost exports. This demonstrates the TRIPS Agreement’s effectiveness as a coercive threat in international economic negotiations.

Numerous objections have been leveled against the TRIPS Agreement’s validity and efficacy, particularly in relation to poor nations. Even famous free-trade proponents like Martin Wolf have criticised TRIPS for its “hypocrisy” viewing it as a rent-seeking device from many poor nations, with potentially disastrous consequences for education, public health, and economic growth. Even among nations that appear to benefit the most from the agreement, gains may only go to certain segments of society, implying that the actual beneficiaries from TRIPS are not developed nations, but rather the major businesses that pushed for its adoption. TRIPS has also failed to address policymakers’ concerns, since trade balances have continued to deteriorate, and the current emphasis on private rights may, in the long run, contribute to stifling innovation and knowledge dissemination in developed nations. While Archibugi & Filippetti warned against misrepresenting TRIPS’ impact, it is clear that the agreement does not work as intended. It would have been better to establish a tiered structure that provided more meaningful special and differential treatment based on nations’ developmental requirements. Given that TRIPS is already firmly established inside the WTO system, it is unclear if major revision of the agreement is possible for the sake of developing nations.

Conclusion

This article might be concluded by stating that, despite the importance of the TRIPS Agreement, the developing countries have highlighted a number of concerns and flaws in the treaty. Despite these issues, the TRIPS Agreement is often regarded as the most comprehensive mechanism for protecting intellectual property rights. It enhances and manifests the previous IPR conventions, the most important of which were first drafted at the end of the nineteenth century. Certainly, these agreements were revised on a regular basis, to permit a gradual international control of intellectual property and copyrights. However, in comparison to the results of previous revision exercises, the TRIPS Agreement constitutes a tremendous conceptual leap that profoundly transforms not only how IPRs are seen internally, but also how they are implemented and disputes are resolved.

References

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Analysis of reproductive rights in India : with special emphasis on gender inclusivity

By

Abanti Bose

-

February 5, 2022

0

abortion — Image source: https://bit.ly/2Z33asM

This article is written by Sharanya Chowdhury, studying at Dr. Ram Manohar Lohiya National Law University, Lucknow. This article has been edited by Ruchika Mohapatra (Associate, LawSikho).

This article has been published by Abanti Bose.

Table of Contents

Introduction

Although most people agree that reproductive rights are essential to one’s right to life, the method of providing the same has always been debated. From abortion rights to menstrual leave, modern-day society has realised that reproductive rights are lacking not just for women but for other gender minorities as well. However, this often does not reflect the legislation of various countries. Feminism, in modern terms, has been defined as “equity between all genders and sexualities.” Although the world as a whole is slowly embracing the idea of a non-binary world, it is necessary to apply this knowledge in our legislation as well. The idea of this article is to look at reproductive rights from a broader perspective, including not only women but also gender minorities and people of non-heterosexual orientation.

Section 312 of the Indian Penal Code

Although several articles have been written about the termination of pregnancy through the IPC 1860 in the past, sections of the IPC were intended to regulate forced miscarriage and not to provide guidelines on how abortions should be conducted. During this time, there were a lot of illegal abortions due to the lack of legislation about the same, which in turn affected the health of the women seeking abortions. This section is still in place and was recently seen in the case of Smt. Sumita Mukherjee vs. The State of Madhya Pradesh on August 7, 2014, where the defendant had filed an appeal before the High Court. The High Court concluded that the trial court had not contemplated the aspect of the case where miscarriage was caused in good faith to protect the health of the prosecutrix. Thus, no case under Section 312 of the IPC could be made out against the applicant.

Although the section here is much needed, no legislation was made to back it up. This shows that there wasn’t enough information with regards to the ground reality of the situation. Forced miscarriage is not only conducted through medical processes but also through starvation, torture, and other gruesome means, which often go unnoticed because women often do not have the means or the freedom to inform the authorities of the ill-treatment that they bear, often from their own families or in-laws.

Acts and Bills on medical termination of pregnancy

The Maternity (MTP) Act 1971 can be considered the first legislation with regard to abortion in India. It brought in not only guidelines on who may undergo the process of abortion, but also laid down specifications on where they may have their pregnancy legally terminated. The Act specified a deadline of twelve weeks within which the woman would have to have the written consent of one medical practitioner. At least two practitioners are necessary if the period of pregnancy exceeds twelve weeks. The “sine qua non” of this legislation was the aspect of “good faith”, i.e., they only allowed abortions within the purview of IPC 1860, which meant that even if a woman intended to terminate her own pregnancy, a threat to her physical health was one of the major factors determining whether the termination would be granted.

Other cases in which abortion may be granted were:

Where any pregnancy is alleged by the pregnant woman to have been caused by rape,
If any pregnancy occurs as a result of the failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children,

The legislation provided that the pregnancy of a minor or a lunatic (as legally defined) may not be terminated without the consent of their guardian and mentioned that the procedure of abortion may only be conducted in a hospital established or maintained by the government or a place for the time being approved for this purpose. The legislation demanded the protection of the privacy of the woman. However, the guidelines for the same were later deemed ambiguous.

Although this Act was a ray of light in a never-ending tunnel, it could not manage to fulfil its goal, which was to make illegal abortions a thing of the past. It failed to consider the scope of executive failure by using mere “guidelines” and not providing bodily autonomy to women. In cases where the reason for the pregnancy did not fall into the given subsets, such as a married woman not having kids, the law could not provide the much-needed relief. This showed the mindset of Indian society towards women, where they would be granted pregnancy termination only if they had “enough children”.

The MTP Act, 2003 further amended the previous Act and added a certain level of clarity to it. Although the termination of pregnancy could still be conducted with the consultation and permission of an authorised medical practitioner, the idea of this act was to make the process of termination safer by preventing under-qualified practitioners from being consulted on the subject. This was done by specifying the training and experience required for such doctors, specifically approving places where the procedure may be conducted, making provisions for the inspection of the approved place, and mentioning the process of cancellation or review of an approved certificate. This was a welcome move for the safety of women. The Act, however, included no mention of non-cis-gendered females. The overtly gendered terminology of Indian legislation restricts the Act to cis-gendered females. Trans guys who have chosen out of surgery or hormone therapy and may be physically capable of having children, hence abortion was not an option for them. Individuals of the intersex community were also left out of these legislations. This not only made abortion legally impossible for these communities but also made reproductive health inaccessible.

The MTP Act, 2021 like the successive Acts, is constricted in the usage of the word “women”, which does not extend the benefits of the bill to transgender people or individuals belonging to other gender minorities. It is important to bear in mind that, in India, the transgender community faces immense persecution, rape, and sexual assault. If a person from the transgender or intersex community conceives under these circumstances, they would not have the same recourse as a cis female. Bodily autonomy has been the main issue in this Act, cases such as Suchita Srivastava v. Chandigarh Administration (2009) and ABC v. Union of India have discussed the same extensively. The Act adds an upper gestation limit of 20 to 24 weeks for specific groups of women, which is established in the MTP Rules. The modifications include rape survivors, incest victims, and other vulnerable women (such as differently-abled women and children), among others. Up until the 20th week of pregnancy, the opinion of only one medical practitioner is required. Although this is not ‘ideal’, it can be seen as an improvement from the previous Acts. In addition to this, an important step towards inclusion is the addition of unmarried women who now, may undergo abortions on grounds of “failure of contraception”.

The Transgender Persons (Protection of Rights) Act, 2019

The Transgender Persons (Protection of Rights) Act, 2019 included provisions for the recognition of transgender persons irrespective of whether they had undergone gender confirmation surgery. This step to improve the social status of the community does not fulfil its goal due to the unexplainable control of such recognition by the District Magistrate. To add to that, we are in desperate need of laws that allow transgender individuals to freeze their sperm or eggs to be later used to have biological children if the person so desires.

Although gender confirmation surgery (also known as gender reassignment surgery in India) is legal, there is a lack of laws that lay down provisions and guidelines parallel to the case of abortive laws in India. In addition to the serious persecution of the transgender and intersex communities in India, we face a strange conundrum where many transgender individuals are denied gender confirmation surgeries and cannot bring it up with authorities due to the stigma attached to the same, and at the same time, many intersex children are made to go through “reproductive correction” without their consent to “make them” a part of the binary.

The Surrogacy (Regulation) Bill, 2019

It is important to note that India does not allow commercial surrogacy, but it allows altruistic surrogacy. This is to make sure that human trafficking for surrogacy purposes can be discouraged. The law lays down guidelines for the “intending couple” for whom surrogacy may be practised. Yet again, we see an exclusion of the genderqueer community by the usage of binary terms in this legislation, which means that a non-binary individual will neither come under the category of the “intended couple” nor be able to birth a surrogate child even if they are biologically capable of doing so. Akin to adoptive laws, the Bill also discriminates against homosexual couples as they will not fit the category of the “intending couple” within this bill, despite falling within the binary of the gender spectrum.

Conclusion

This is the part where I advocate for diversity. If you’ve ever read similar articles and wondered, “Why are all of these things such a big problem?” Why don’t these communities stand up against this discrimination? It’s time to keep in mind that these communities are constantly under-represented in the government. This is not only because of their fewer numbers; they are in fact un proportionally represented. In India, this is a bigger problem. This is not only true for the non-binary community but also true for women and the transgender community (that identify within the binary). Laws related to the bodily autonomy of other gender identities are often made by cis-heterosexual men who are often not educated enough and don’t have the right exposure to see the perspective of other identities. In addition to this, the stigma against non-male identities makes it difficult for them to be represented in politics.

No representation equals a lack of knowledgeable people with the exposure to understand and advocate for the rights of minorities within the law-making framework. No knowledge leads to laws that are either discriminatory, impractical, or full of loopholes. Our horizons need to widen and our laws need to cater to all citizens instead.

References

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All you need to know about the BECA Agreement

By

Rachit Garg

-

February 4, 2022

0

Usa-America-Statue-Liberty-Statue-Of-Liberty-2835696 — Image Source- https://bit.ly/39ciG7a

This article is written by Sujitha S, from the School of Excellence in Law, Chennai. This article deals with the last foundational agreement between India and US: ‘BECA Agreement’. This article further discusses the relevant implications and significance of the agreement.

This article has been published by Rachit Garg.

Introduction

The India-U.S. relationship remained transactional at best during Trump’s administration. During this period, India-US relations grew to a considerable extent in the fields of connectivity and geo-strategic concerns. In the previous four years, both countries have improved their strategic convergence on the need to resist Chinese presence in the Indo-Pacific area. Eventually, India and the United States have signed four foundation agreements to strengthen defence ties throughout several US administrations.

Even in the final days of Trump’s presidency, US Secretary of State, Michael Pompeo, and US Secretary of Defence, Mark Pence, visited India for the 2+2 ministerial dialogue between the two nations’ defence and foreign ministries. The signing of the Basic Exchange and Cooperation Agreement (BECA) on geo-spatial intelligence sharing was the most significant outcome of the visit. It was the final agreement in the foundational agreement series. These pacts paved the way for more precise military intelligence, encrypted defence systems, logistical support, supplies, and services, among other things. Regular exchanges and coordination between military forces in areas of mutual interest, such as counter-terrorism, maritime security, special operations, humanitarian assistance, and disaster relief, were also made easier.

Historical context: Indo-US relations

Post Indian independence

India requested military assistance from certain countries, notably the United States, shortly after gaining independence. India received 200 Sherman tanks and 54 Fairchild Packet aircraft from the United States, but their request for 200 fighter aircraft was denied. This, in a sense, sums up how Indo-US relations will be in the coming decades. The following movement of India towards non-alignment, as well as Pakistan’s acceptance of the treaty alliances forged by the US to combat communism, resulted in a cooling of Indo-US relations. The provision of frontline military equipment to Pakistan and its use against India in 1965 and 1971, the signing of the Treaty of Friendship between India and the former Soviet Union in 1972, and India’s nuclear test in 1974 all contributed to the Indo-US relationship becoming near hostile. If there was a silver lining to all of this, it was just the people-to-people relations. The United States was popular among Indians; and Indian doctors, engineers, and, in particular, software programmers were gradually transforming Americans’ views of Indians.

Disintegration of USSR

Following the disintegration of the former Soviet Union, the United States reached out to India in 1991 with the Kicklighter Proposals. Service-to-Service exchanges, which included joint exercises between the armies of the two countries, were established as part of a defence cooperation framework. The Defence Policy Group was established in 1995 as an umbrella organisation to give policy guidance to the Services and technical units. The Indian Army was engaged by the US military based on its counter-insurgency and high-altitude fighting experience. Military-to-military cooperation between India and the United States now includes 13 Policy and Working Groups, as well as 11 sets of exercises held at various intervals.

The Indian military forces’ inventory by the end of the 1990s was primarily of Eastern Bloc provenance, with a lower technical barrier. Russia, the USSR’s successor state, was in disarray. Support for some of the military’s most important equipment and weaponry had all but vanished. The Indian economy was beginning to recover, and threats from over the border were becoming more serious. With a nearly non-existent defence sector, India hoped to receive high-end technology from the United States promptly and at reasonable prices. With a few exceptions, this has proven to be an illusion. India has been able to expand its transportation fleet but at a significant cost. The US defence sector operates differently, and the US government has always been a tough negotiator. The decision by India to go nuclear in 1998 posed new hurdles for Indo-US defence cooperation. The United States wanted India to sign the foundational agreements. India refused to give up its strategic autonomy or become entirely enmeshed in the US geopolitical narrative.

Indo-US foundational agreements

The United States has four “foundational” agreements with its defence allies. The agreements are “routine mechanisms that the US utilises to encourage military cooperation with partner-nations,” according to the Pentagon. The agreements, according to American officials, are not required for bilateral defence cooperation, but they would enable carrying out defence tasks, easier and more cost-effective.

General Security of Military Information Agreement (GSOMIA)

This agreement allows the two countries to share military intelligence and requires each government to protect the other’s confidential data. It was signed in 2002 between India and the United States.

Logistic Support Agreement (LSA)

The LSA allows the forces to replenish and repair each other’s bases. The Logistic Exchange Memorandum of Understanding was signed by India as a modified version of the same (LEMOA). The LEMOA does not bind either country to provide logistic support and requires individual clearance for each request.

Communication and Information Security Memorandum of Agreement (CISMOA)

During bilateral and multinational training exercises and operations, this agreement allows both two countries to share communication and information on authorised equipment.

Basic Exchange and Cooperation Agreement for Geospatial Intelligence (BECA)

The BECA allows India and the US National Geospatial Agency to share unclassified and regulated unclassified geospatial products, topographical, nautical, and aeronautical data, products, and services.

The BECA Agreement

The Ministries of both countries wanted to strengthen collaboration within the 2+2 framework to realise the full potential of the India-US Comprehensive Global Strategic Partnership, as they commemorate more than seven decades of diplomatic interaction. BECA has been in the works for more than a decade because the UPA government was concerned about its impact on India’s national security. However, it was under Manmohan Singh’s UPA government that India increased its defence purchases from the United States. The two countries have racked up $20 billion in defence purchases over the last 13 years.

The Basic Exchange and Collaboration Agreement (BECA) for geospatial cooperation is primarily a communication agreement suggested by the US Department of Defense’s National Geospatial-Intelligence Agency and India’s Ministry of Defence. During the 2+2 India-US ministerial dialogue in 2020, India and the US inked the major defence pact ‘BECA.’ BECA is the United States’ fourth and final foundational agreement with India. They reaffirmed their commitment to deepening the India-US alliance, which is based on mutual trust and friendship, shared commitment to democracy, common strategic interests, and robust citizen participation.

Important features of the agreement

The Basic Exchange and Cooperation Agreement, or BECA, will provide India with real-time access to accurate data and topographical photographs from US military satellites.
The pact will allow the US to exchange sensitive satellite and sensor data with India, which will aid India in pinpointing military targets.
BECA will assist India in gaining real-time access to geospatial intelligence from the United States, which will improve the precision of automated systems and weaponry such as missiles and armed drones.
BECA will deliver a high-quality GPS to Indian military systems, allowing missiles to navigate with real-time intelligence to effectively target the opponent.
This Agreement shall help the US to persuade India for its aid in the light of Indian ocean concerns, especially in the South China sea.
BECA may help the US in developing a deeper relationship with India than Russia in arenas of defence.
In order to challenge China, the United States may get closer to India forming an alliance structure.

Need for the BECA Agreement

India will emerge as a significant military force in the Indian Ocean region as a result of this agreement.
Although India has profited from some of these agreements in the past, their institutionalisation makes their usage more smooth.
The agreement reduces logistical hurdles in bilateral defence cooperation while facilitating cost savings in the procurement and maintenance of US-made military hardware.
The movements of Chinese warships in the Indian Ocean will be able to be closely monitored.
In the case of Pakistan, India will be able to use satellite and other data from the US to verify the success of tactical strikes like Balakot.
The agreement might pave the path for India to buy armed unmanned aerial drones from the United States.

Significance of the BECA Agreement

Indo-Pacific strategies

The signing of BECA will hasten the merger of their two countries’ Indo-Pacific policies. This is also in line with the growing formalisation of QUAD, as evidenced by Australia’s recent participation in the Malabar naval exercises. India would be able to keep a close eye on Chinese vessel movements in the Indian Ocean. Furthermore, it was signed at a time when India and China are embroiled in one of their most violent standoffs in the Himalayan region along their disputed boundary.

Military implications

While LEMOA implies that one partner trusts the other sufficiently to reveal important assets, COMCASA implies that the two militaries may communicate through encrypted systems, and BECA implies that highly classified information can be shared in real-time without danger of being compromised. Faced with an increasingly aggressive China, all of this demonstrates the level of confidence that has evolved among both the countries and their military. From interoperability to intelligence sharing and collaborative defence research to weapon manufacture, BECA enables for more intensive cooperation between the armed forces.

Cyber security

Long-term objectives of a rising India and an America will prosper from comprehensive and regulated cooperation between the two defence establishments. For a variety of reasons, cyber security collaboration between India and the US should be a fair sector of cooperation. The fact that both countries are democratic, with comparable principles, eliminates the possibility of ideological antagonism. Furthermore, cyber threats from both state and non-state actors have been directed at the two countries.

Access to advanced data

Geospatial information and related materials and equipment provided to a country shall be utilised by that Party for this Agreement. Even though intelligence sharing between two countries is inherently sensitive, there is an increasing need as the two countries share several common goals for the welfare of not only their citizens but also the global welfare. Nanosatellites, high-tech nuclear safeguarding equipment, counter-terror attack simulations, and a grid network for intelligence exchange would all be part of the collaboration.

International implications of the BECA Agreement

India and the United States will better coordinate their Indo-Pacific strategies.
The QUAD (Quadrilateral Security Dialogue), an informal security dialogue among the US, India, Australia, and Japan, will be strengthened further.
India can maintain a careful eye on Chinese naval activities in the Indian Ocean in the context of deteriorating India-China relations. It will also aid in the fight against future Chinese incursions along India’s land frontiers.
The signing of all three foundational pacts demonstrates the United States and India’s growing trust.
India is one of the world’s largest consumers of defence equipment, but Russia supplies 60-70 per cent of its inventory. In addition, the US wants India to shift away from Russian equipment and platforms, believing that doing so may expose its technology and information to Russia.
The US and India have differing foreign policy interests, particularly with relation to Pakistan, Afghanistan, and Iran.
The US would like India’s cooperation in the South China Sea because of Indian Ocean difficulties, but India’s principal naval challenge is in the western and northwestern Indian Ocean.

Correlated concerns of the BECA Agreement

Issues of alliance: The signing of these four foundational declarations will bring India closer to the United States strategically. In order to challenge China, the United States would like India to get closer to forming an alliance structure. However, one component of the Indian strategic establishment’s antipathy to the word alliance has remained consistent. This belief that alliances are fundamentally harmful has been a constant in India’s mainstream forethought from the era of non-alignment to the present-day alternatives of multi-alignment.

Equipment purchase from Russia: India is one of the world’s largest purchasers of defence equipment, but Russia supplies 60-70 percent of its inventory. In addition, the US wants India to shift away from Russian equipment and platforms, believing that doing so may expose its technology and information to Russia.

Interference in decision-making: Many foreign policy experts in India believe that by synchronising its systems with those of the United States, the United States will be able to join its decision-making loop. It’s something that no independent nation wants.

Varied interest regarding foreign policies: The US and India have differing foreign policy goals, particularly with relation to Pakistan, Afghanistan, and Iran. The US would prefer India’s assistance in the South China Sea because of Indian Ocean concerns, but India’s core naval challenge is in the western and northwestern Indian Ocean.

Way ahead

The United States may explore amending the International Traffic in Arms Regulation (ITAR) to bring India up to level with some of its closest friends. This connection might be nurtured by appointing a political appointee to the Pentagon. He’d have to answer to both the US Congress and the White House for committing enough attention and time to make progress.
Naval cannons, mine-strewn anti-tank vehicles, unmanned aerial surveillance systems, Javelin missiles, and aircraft landing systems for carriers were among the five probable areas for collaboration identified by the Indian Defence Ministry.
To assist advance the relationship, India would need to discuss its goals with the United States. It must be realised that the United States’ technology release procedure is guided by the wishes of its allies. The Trump administration’s National Security Strategy makes it plain that it wants to deepen defence and security cooperation with India. India has the chance to capitalise on this.
Maritime security has evolved as a crucial area of cooperation as Indo-US strategic interests in the Indian Ocean and Indo-Pacific continue to coincide. Amphibious and naval drills between India and the United States will be expanded in scope and participation. The Pentagon has also agreed to send a military representative to DIUx, a US government body that finances private businesses working on cutting-edge defence technology.
The development of China, as well as the matter of China pursuing bases in Djibouti, the Maldives, Sri Lanka, and Pakistan, provide inherent concerns for both India and the United States in the Indian Ocean Region (IOR).
To assist advance the relationship, India would need to discuss its goals with the United States. It must be realised that the United States’ technology release procedure is guided by the wishes of its allies. The Trump administration’s National Security Strategy makes it plain that it wants to deepen defence and security cooperation with India. India has the chance to capitalise on this.

Conclusion

The US-Pacific Combatant Command Commander Admiral Kicklighter spearheaded the resuscitation of the Indo-US partnership following the dissolution of the old USSR by forging tighter military-to-military contacts between the two nations. There are now around 50 interactions between India and the United States in various industries. India has provided several markers of its rise. However, ideological considerations have occasionally limited its practicality. Hopefully, this is no longer the case. India requires allies in order to counter China’s muscular foreign policy. Closer defence ties between India and the United States is one option. The signing of the BECA would enable India and the United States to work together to influence the regional and global environment in favour of peace and stability. However, neither country should make a big deal out of the signing because these accords are only a means to a bigger goal: the security and prosperity of its people.

Reference

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All about Section 504 IPC

By

Sneha Mahawar

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February 4, 2022

0

This article is written by Sarthak Kulshrestha, a BA.LLB. student at Jagran Lakecity University, Bhopal. This article deals with Section 504 of IPC in detail and also discusses its relevant case laws.

This article has been published by Sneha Mahawar.

Introduction

The legal system of India provides for the laws which are aimed at maintaining public tranquillity and contain provisions based on the principles of humanity and peace. The Indian Penal Code, 1860, contains the list of criminal offences and prescribes the punishment for each of them. All the offences listed under the IPC are divided into various categories and are put under separate chapters accordingly.

Chapter XXII of IPC is titled “Of Criminal Intimidation, Insult and Annoyance” and it covers Sections 503 to 510. This article discusses the offence stated under Section 504 of the IPC. Insult is a common word that we often heard and used without giving it a thought. But the intensity of this term is high enough to make it a criminal offence. In this article, the readers will get a detailed explanation of Section 504 and will come to know about the nature and punishment of the offence with the help of some relevant case laws discussed herein.

Explanation of Section 504 IPC

Section 504 of IPC states that whoever intentionally insults, and thereby causes provocation to any person, intending to cause provocation or knowing that such provocation would likely cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment for a term up to two years, or with fine, or with both. Any person who provokes the other one by insulting him and thereby makes him cause a disturbance so as to ruin the peace of a public place or leads the insulted person to commit any other criminal offence will be punished under this Section.

The use of offensive language is quite usual among the people and a lot of times the offensive nature of the abusive words is not taken as the element of an offence to attract criminal liability. But when such language is used by a person to insult the other one intentionally, with the intention or knowledge that his words are likely to provoke the person so insulted to break the public peace, he may be penalised under Section 504.

Ingredients of Section 504 IPC

A person is supposed to commit an offence under this Section if his act fulfils the conditions constituting essential ingredients for the said offence. The ingredients of Section 504 are listed hereunder as:

The accused has insulted the other person intentionally.
The intention of the person should be such that it is likely to provoke the person who has been insulted.
The accused has the knowledge that such provocation would cause the person to break the public peace or under the influence of which, he can commit some other offence.

The provocation and the knowledge that the act of provoking another person may lead him to do something which can break the public peace are the secondary ingredients. A person is provoked only when he has been insulted intentionally by some other person. This implies that the foremost ingredient of committing an offence under this Section is an intentional insult. The element of mens rea is necessary. Let us understand precisely what does the term “insult” mean under Section 504.

Meaning of insult under Section 504 IPC

This Section takes verbal disrespect into consideration to classify it as “insult”. A person is supposed to disrespect the other one intentionally in order to cause his insult. When it becomes so severe that it induces the insulted individual to cause the breach of public peace at large, this Section attracts the criminal liability of the person who insulted him. Any use of words by which someone can be offended is enough to constitute insult for the purpose of this Section. The abusive words or harsh language consisting of slang are sufficient to cause the contempt of the dignity of a person. It is a very general scenario where two individuals argue with each other and subsequently one of them starts using abusive language against the other one. This act is sufficient to charge that person under Section 504 who uses such language intentionally, as it constitutes insult according to the said provision.

It is noteworthy that the use of such abusive language has to be intentional. To establish an offence in this Section, the insult should be caused with the intention to provoke a person. A mere impolite way of addressing someone and casual talks between friends is not considered as an offence under this Section. If a person uses abusive language against someone but does not possess the intent to provoke him to break the public peace, he will not be held guilty of the said offence. Therefore, it has to be determined first, whether the person had the intention to insult the other one or not.

The question of determining the intention of insulting an individual depends on the facts of a particular case. The relation between the people, background, circumstances and whole situation is critically analysed by the Court to determine whether the insult was intentional or not. Once it is proved that the insult was caused intentionally to provoke the other person and break the peace of a public place, then the case can be brought under Section 504, as the main ingredient of intentional insult gets fulfilled.

Nature of Section 504 IPC

The nature of offences committed under this Section is non-cognizable. This implies that in a case in which Section 504 is imposed on an individual, a police officer cannot arrest him without a warrant and the permission of the Court has to be taken. Also, these offences are bailable in nature i.e the grant of bail is a matter of right and it is not a Court’s discretion. These offences are not so grave and hence their punishment is prescribed accordingly, which is imprisonment up to two years, or with fine, or both. An offence committed under this Section is compoundable, and thereby the complainant (the victim) enters into a compromise and agrees to drop all the charges against the accused. It is to be noted that only the person whose insult is done is allowed to compound the offence.

Procedure for the trial of a case filed under Section 504 IPC

If an offence has been committed under Section 504, the procedure for its trial will be the same as for any other criminal offence listed in the IPC. Starting right from filing an FIR under Section 504 to the judgement of the Court, there are several stages of the procedure for the trial of an offence under this Section. Let us understand through the steps discussed below with respect to how a case filed under this Section proceeds in Court.

Filing of the FIR

Once the accused is arrested by the police, an FIR has to be filed and the accused person is supposed to be produced before the Court of Magistrate within 24 hours of the arrest.

Final report by the police

After the police complete the investigation of the offence, it is bound to file a final report in the Court under Section 173 of the Criminal Procedure Code (CrPC). This report acts as a final submission of the investigation undertaken by the investigation agency. If any case is filed under Section 504 of IPC, all the on-sight evidence collected by the police will be included in the final report which will help the Court to determine whether the ingredients of the offence have been fulfilled or not.

The charge sheet includes the facts of the case and all the details of the investigation done by the police. During the investigation, whatever statements of the accused have been recorded are also contained in it and a copy of the FIR is attached with the charge sheet. On the filing of the charge sheet, the Magistrate takes cognizance of the matter under Section 190 of CrPC. The court can reject the charge sheet if it feels so, and discharge the accused or can accept it and frame the charges to post the case for trial.

Actions to be taken by the prosecution

Firstly, the prosecutor will make the statements that the charges which are imposed on the accused under the charge sheet are verbal abuse and intentional insult under Section 504 of IPC. To prove the accused guilty of the offence under the said provision, the prosecutor is supposed to support his statements with some evidence collected against the accused and statements recorded from the witnesses. However, the person arrested under Section 504 will have the right under Section 227 of CrPC to apply for discharge by proving that the charges put against him are false and very weak in order to proceed with the trial further.

Final arguments

According to Section 314 of CrPC, any party in a proceeding may, after the close of his evidence, address concise oral arguments and before he concludes the oral arguments, he may submit a memorandum to the Court stating clearly and under distinct headings, the arguments in support of his case and every such memorandum shall form part of the record. A copy of the same shall be immediately furnished to the opposite party.

The judgment

After having analysed the arguments put forth by both the parties, the judge decides the case and passes the decree of conviction or acquittal, as the case may be. In the case of Section 504, if the judge feels that the insult was done with the intent of provoking the other person and the person who insulted wanted to cause the breach of public peace or the commission of any other offence committed by the person so insulted, the judge may hold the person guilty under Section 504 and pass the conviction order in the judgement.

Relevant case laws

BR. Meena v. Mangal Das Chiman Lal Barot and Another (1987)

In BR. Meena v. Mangal Das Chiman Lal Barot and Another (1987), the appellant, in a fit of anger used harsh and abusive language against Mangal Das (the Assistant Station Master). He filed this complaint under Section 504 of IPC. In the trial, the prosecution could not prove the ingredients of the offence under Section 504 of IPC. The Court observed that mere utterance of some abusive words does not attract criminal liability under this Section. The ingredients of this Section are that there should be an intentional insult and such insult must give provocation to any person and he should have knowledge that such provocation will result in the breach of public peace or any other offence. The court held that since there was a lack of essential ingredients of this Section, the appellant was acquitted of the offence for which he was charged.

Ram Chandra Singh v. Nabrang Rai Barma (1998)

In the case of Ram Chandra Singh v. Nabrang Rai Barma (1998), the complainant stated that he complained about the boundary wall that was constructed by the accused because it was creating nuisance to the complainant as it was built over his roof. In reply to the complaint, the accused abused him with filthy language. The Orissa High Court held that, whether mere abuse that would amount to an offence under this Section is dependent on various factors such as the status of the parties, the nature of abuse and several other factors. The Court held that such words are normally used by the parties in petty quarrels and hence did not amount to an offence under this provision.

Philip Rangel v. Emperor (1931)

In Philip Rangel v. Emperor (1931), the accused was a shareholder in a bank and in a meeting of shareholders, it was proposed that he should be dismissed from their group. The accused lost his temper and reacted to the proposal against him by uttering abusive words. The Bombay High Court clarified that the words should amount to something more than ‘mere verbal abuse’. The language cannot be held to amount to intentional insult under this Section, especially when it is not directed to a particular individual.

Muhammed Ibrahim Maracayar v. Ismail Maracayar (1949)

In the case of Mohammed Ibrahim Maracayar v. Ismail Maracayar (1949), there was a father who was resident in Vellore and he wrote an insulting letter to his daughter and son-in-law. This act of the father was considered to be an offence under Section 504 by the complainant. The Court held that the reaction of the person insulted cannot be considered. An intentional insult should be such that it would lead to provocation, and subsequent breach of the peace would render the offender liable for the said offence.

Devi Ram v. Mulakh Raj (1962)

In Devi Ram v. Mulakh Raj (1962), the petitioner and his deceased father abused the respondent as he stopped them from passing by his house. The importance of intention of committing an offence under Section 504 was upheld in this case. It was held that it is not necessary that there must be an actual breach of peace for the application of this Section. The essential element is the intention of the offender to provoke the breach of the peace or he should have knowledge that his provocation is likely to cause the commission of an offence.

Surendra Prasad v. State of UP (2019)

In Surendra Prasad v. State of UP (2019), the accused along with a few of his friends went with the cows into the field at around 8 PM. The cows were pushed in such a manner that they started grazing the crops grown in the field. An informant saw them and tried to stop the accused and subsequently, the accused started abusing that person and threatened to kill him. Hearing the cries of the informant, his wife came to save him but the accused assaulted her also. There was an FIR filed against the accused under Section 504 and some other relevant sections of IPC. It is clear from the facts that the offence comes under Section 504 as the insult had taken place intentionally with the intent to provoke breach of peace. The accused insulted the informant with the intention to destroy the grown crops. The FIR also fulfils the ingredients of this Section. Finally, the court held that the accused was guilty of committing the offence under this Section.

Conclusion

Section 504 of IPC takes into account the intensity of the verbal disrespect so as to be sufficient to provoke the insulted person. The Courts in various judgments have noted that mere use of abusive words in a usual fight does not constitute an offence under Section 504 as it lacks the most important ingredient of intentional insult.

The insult has to be intentional in order to provoke the insulted person to break public peace or to commit any other offence. In simpler words, the act of intentionally infuriating or provoking someone to commit an offence and cause a breach of public peace is an offence under this Section. This means that the mere act of intentionally insulting an individual to provoke him is an offence irrespective of whether the breach of public peace has occurred or not. Thus, this Section safeguards the dignity of the citizens by assuring them that the substantive law consists of the provision which protects the self-respect and dignity of every individual living in our country.

References

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