Taylor Swift : ‘Evermore’ dispute

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November 29, 2021

This article is written by Ansruta Debnath, a student currently pursuing the BA LLB degree from National Law University Odisha. This article on the dispute that Taylor Swift recently got entangled in with regards to her latest new album ‘Evermore’.

Table of Contents

Introduction

Popstar and female icon Taylor Swift recently clashed with Utah based theme park on the word “Evermore”. Suits and countersuits had been filed with regards to trademark and copyright issues, with the climax being both sides unanimously agreeing to drop their respective suits. This article delves into the entire legal battle and gives an overview of the relevant laws in the United States. Laws related to the same issues which are present in India have also been briefly enumerated.

Suit against Swift

Evermore Park is a fantasy theme park in Pleasant Grove, Utah in the United States of America. It was launched in 2018 (the name was registered in 2015) and offers an immersive experience to all its visitors. With costumed actors and enchanting sets, the park promises to let its visitors escape into a world of magic and mystery.

Taylor Swift released her album Evermore, in December of 2020, sending all Swifties into a frenzy. It was her second pandemic album and sister album to Folklore which was released in July of the same year. Describing Evermore as an imaginary world of escapism just like Folklore, Mama Swift (as she is lovingly called by her devoted fan base) presented to her listeners, few of the most elegant songs she has ever written in her career. Just like any pop star, she also, consequently, launched Evermore themed merchandise on her website.

The Park in February of 2021 initiated a suit against Swift, her TAS Rights Management Company and merchandise company, Taylor Nation claiming that they suffered immense losses since the launch of the album and its related merchandise. Their main contention was that Swift had infringed on the trademark “Evermore” which belonged to the Park. They further contended that confusion was being created over park related products and album related ones and that online traffic on their website had drastically reduced since the launch of the album (A quick Google search of the word “Evermore” automatically shows Taylor Swift related websites; Evermore park is not showing unless a specific search is done and thus the last claim is not unfounded). Park representatives also criticised Swift’s “Willow” music video which is fantasy and magic themed and was alleged to be an imitation of the park’s theme.

After a “cease and desist” was sent to Swift, the web link to Swift’s Evermore merchandise website was removed. The company still alleged that said removal did not make up for the losses they suffered against the nearly $1 million that was spent on advertising, securing a domain name etc for their park. They also claimed that close to $37 million was spent on “creation and promotion of Evermore Park and the Evermore trademark,” with much of that amount coming from CEO and Founder Ken Bretschneider himself.

Trademark infringement laws in the U.S.

A trademark is any word, name, symbol, or design, or combination that is being used in trade and commerce to ascertain a difference between those sold by the manufacturer who holds the trademark from other products. The trademark is generally associated with the reputation and goodwill of the manufacturer. Shapes, sounds, fragrances and colours may also be registered as trademarks.

In the United States, Congress has the power to regulate intellectual property. This power flows from the Commerce Clause which is Clause 3 of Article 1, Section 8 of the US Constitution. The U.S. Patent and Trademark Office (PTO) is responsible for issuing and monitoring federally registered patents and trademarks. Although patents are exclusively governed by federal law, trademarks may also be regulated by State law.

The U.S. trademark Law is the Lanham (Trademark) Act, 1946. It does a number of things like banning false advertising, trademark infringement etc.

Registration of a trademark is not mandatory to get protection for the same. According to principles of the common law, trademark rights get automatically acquired when a business uses a name or logo in commerce, and are enforceable in state courts. However, registered trademarks get wider protection from the U.S. Patent and Trademark Office.

There are two basic requirements that need to be met for a trademark to be accorded with federal protection, i.e.,

The mark must be used in commerce.
The mark must be distinctive. There are four categories of distinctiveness;

Arbitrary and Fanciful- Maximum and strongest protection,
Suggestive- Moderate protection,
Descriptive- Weak protection,
Generic- No protection.

Similar Indian legal provisions

Definition

Trademarks in India are governed by the Trade Marks Act, 1999. In that Act, trademarks have been defined under Section 2(zb) as a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colours.

Ambit of protection

The Trade Marks Act provides for registration of service marks, filing of multiclass applications, increasing the term of registration of a trademark to ten years as well as recognition of the concept of well-known marks, etc. The Indian judiciary has also extended the protection of trademarks to domain names.

For example, the Delhi High Court, in the case of Verizon Trademark Services LLC & Ors. vs. Bhabani Sankar Swain & Ors. (2016), prevented the defendants, by way of an injunction, from infringing upon the trademark of Verizon owned by the plaintiff and including their domain name within the scope of the said trademark.

Registration

Registration in India is also not mandatory for the protection of trademarks. The 1999 Act has provisions of infringement of registered trademarks as well as of passing off which is a common law principle for protecting unregistered trademarks (Section 135). The Tort Law of passing off prevents one person from misrepresenting someone’s goods as his own.

In the case of Medicure Hygiene v. Medicare Hygiene (P) Ltd. (2013), it was held that Medicure and Medicare were deceptively similar and the defendants were with dishonest intentions and in bad faith encashing the good faith and reputation of the petitioner. Since the trademark was unregistered, a passing off injunction was ordered against the defendants.

Well-known trademark

As mentioned above, Indian laws also recognize the concept of ‘Well-known’ trademarks. The concept finds mention in Section 9 and Section 11 of the Trade Mark Act, 1999.

In the case of Hindustan Pencil Ltd. v. Gyanandra Kumar & Ors. (2006), the defendants were prevented from using the Apsara carton because its features, as well as the name Apsara, was a well-known trademark of the petitioners, within the scope of Section 11 of the Trade Mark Act, 1999.

The countersuit

Taylor Swift’s battalion of lawyers claimed that the allegations of Evermore Park were unfounded and had to be on some basis to hold up in court. They further contended that this suit was a desperate move by the Park’s management to get money because they have been having significant financial issues. Swift’s lawyers based their arguments on a 2020 report by Utah Business (a magazine) that found the park faced “financial ruin,” owing millions of dollars to its construction contractors. According to the magazine, Evermore Park was already facing at least five lawsuits from major construction companies.

Simultaneously, Taylor Swift slapped Evermore Park management with a countersuit for copyright infringement. Swift contended that the Park performers had been singing her songs like “Bad Blood” and “Love Story” and songs of other artists like Katy Perry without obtaining appropriate licenses. The Park had previously been cautioned about its staff members entertaining guests with “unlicensed public performances” of popular songs. Apparently, Swift’s management had been sending warnings since 2019 but they had all been ignored. Also, Swift’s lawyers claimed Evermore Park’s CEO sought “retroactive” authorization that would cover all public performances since 2019 after the countersuit had been filed.

Copyright infringement laws in the U.S.

American law defines copyright as the exclusive right to reproduce, publish, sell, or distribute the matter and form of something.

In the United States, copyrights are completely governed by federal law and need to be registered in the U.S. Copyright Office to be legally enforceable. The U.S. Copyright Act initially protected the writings of authors. Now, the scope of “writing” has dramatically increased with the evolution of technology. The Copyright Act now covers software, graphic arts, movies, sound recordings etc. Thus, the Copyright Act protects within its ambit all works which have a concrete and tangible method of expression.

Registration of copyright is voluntary and may take place at any time during the period of protection. Moreover, although registration is not a prerequisite for protection, for a suit of copyright infringement to take place, the copyright must be registered first at the Copyright Office.

The author’s copyright is usually protected for 70 years after his or her death. If the piece was a “work for hire” copyright lasts for 120 years after it was created or 95 years after it was published, whichever comes first. The copyright term laws for works created before 1978 are a little complicated to ascertain. For a work to be eligible for protection under copyright laws, it must have a certain minimal degree of creativity and originality.

Similar Indian legal provisions

Definition and ambit

Indian copyright laws are governed by the Copyright Act, 1957 and the Copyright Rules, 2013. The Copyright Rules were revamped in 2013 and replaced the original Copyright Rules, 1958.

In India, judicial precedents add to India’s copyright law sources. The Berne Convention (1886) and the Universal Copyright Convention (1952) are both signed by India. The International Copyright Order, 1999 was also enacted by the Indian government. Any book originally published in any nation that is a member of any of the above conventions is given the same status as if it was first published in India, according to this Order.

Section 13 of the Copyright Act 1957, copyright protection is conferred on literary works, dramatic works, musical works, artistic works, cinematograph films and sound recording. For example, books, computer programs are protected under the Act as literary works.

The meaning of copyright is given in Section 14 of the 1957 Act. It protects expressions of ideas rather than the ideas themselves. To elaborate, copyright can be sought on the originality of the way a particular idea has been expressed, not only on the originality of the idea itself.

In Eastern Book Company v. D.B. Modak (2007) it was held that for a derivative work to have copyright protection, the author must produce the material with the exercise of his “skill and judgment with a flavour of creativity”.

Protection to the author and owner of the copyright is accorded under two umbrella aspects i.e.,

Economic Rights
Moral Rights- Rights of Paternity and Integrity

First owner

Section 17 of the 1957 Act recognizes the first owner of any work. It is a very important concept in the Act. This principle of first ownership was reiterated in the important case of Tata Consultancy Services v. State of A.P. (2005).

Duration of protection

As provided in Section 23, for literary, dramatic and musical works, the period of copyright enforceability is 60 years from the day the author dies, or 60 years from when the last author dies (in case of joint-ownership) or 60 years from the date of publication (in case the author is unknown). In the case of cinematograph films and sound recordings, it is 60 years from the date the work has been published.

The culmination and conclusion

Both sides of the legal battle have agreed to drop their respective suits without any monetary compensation. This is probably because there is validity of arguments on both sides and both the suit and the countersuit do have substance. But on the face of it, it would have been much more difficult to prove a trademark infringement as according to the U.S. PTO database, there are 50 registered trademarks for Evermore. Thus, given the financial woes of Evermore Park and Swift’s desire to not be wrapped up in any controversy unnecessarily, it is for the benefit of both that the suits are dropped.

References

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

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://t.me/joinchat/L9vr7LmS9pJjYTQ9

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Viewing murder and greater evil within Indian jurisprudence

By

Abanti Bose

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November 29, 2021

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Screen-Shot- — Image source - https://bit.ly/3EWRHwF

This article is written by Raunak Sood, a 4th year BBA LLB (Hons.) student studying at Bennett University, Greater Noida, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.

Table of Contents

Introduction

“Purely Legal Point of View”

In the given factual matrix if it is argued from a legal point of view then as per Section 300(4) of the Indian Penal Code, 1860 (“IPC”), “murder” is said to be committed if a human being does an action (act) which is so inevitably dangerous which might in all chances cause death without any justifiable excuse therefore as per the facts the doctor knew that A who was aged 70 years with diabetes and alcohol issues (hereinafter referred to as “Person A”) might not survive if a liver transplant is not conducted upon him (a wrongful act of the doctor) but as per the black letter of law prescribed in Section 300(4) this act of not providing medical service to Person A amounts to murder because in all probability not giving medical help to Person A will lead to his death, and hence the doctor can be said to have committed an offence punishable under Section 302 of IPC because he has notice of the fact that Person A will die if not provided with medical service of a liver transplant.

When it comes to the defence of the doctor, the doctor in all probability will state before the judge that under Section 81 (Doctrine of Necessity) of the IPC which lays down that no offence is said to be committed if done with bonafide intentions (good faith) even though such bonafide acts might cause harm or injury to other person but since it was done with an objective to keep away another person from being harmed, it will be argued before the judge that the doctor was acting in good faith by putting Person A in harm’s way because Person A had fewer chances of survival as compared to a young a healthy woman aged 37 years with a higher survival rate (hereinafter referred to as “Person B”). Herein the doctor chose the lesser evil which was to let Person B survive and allow Person A to die and therefore, the doctor should not be punished whereas his action of breaking the law (i.e. law which was infringed was Section 300 of IPC) prevents more evil compared to an action where had he not broken the law (death of both Person A and Person B) which is a greater evil because both Person A dying after the liver transplant had taken place and Person B who could have been happy, his happiness had been taken away from him because of a mere technicality.

Hence, in the present facts and circumstances, both Section 300 (Murder) and Section 81 (Doctrine of Necessity) are coming into play, therefore I (the judge) must strike a balance using jural relations and jurisprudential concepts to secure justice for the accused (doctor) and the aggrieved family of Person A.

Background

To thoroughly examine and discuss the topic, let us presume that there is a doctor, a patient named Person A who is 70 years of age with diabetes and alcohol issues and there is a Person B who is healthy. Both Person A and Person B are suffering from cirrhosis which needs an immediate liver transplant. Person B’ name is second on the waiting list for a liver transplant and Person A’s name is first in the waiting list for a liver transplant but according to the medical knowledge and due care exercised by a doctor, since Person B has a greater survival chance compared to Person A, the doctor thereby does a liver transplant for Person B bypassing the name of Person A. Now the State authorities have arrested the doctor on charges of Murder. I (i.e. the current writer of this article) is a judge and I have to decide the guilt of the doctor keeping in mind the law and jurisprudence surrounding the murder.

Jurisprudential aspects

Sociological school

This school of law iterates whether the law is compatible with social happenings. It is expected that judges, when deciding, should focus on the social objectives and interests served by the law rather than on individual people and their national rights.

Leon Duguit was a French jurist who laid down the doctrine of social solidarity which states that all men in the community (society) are interdependent (interconnected) on each other since man cannot procure the daily essentials (necessities for survival) by himself, he has to bank on others for them, the eventual end for all human activities is to secure interdependence upon each other, therefore the law is such that it has to endorse this interdependence wherein men obey the law because they want to live as members of the society.

Theory of Justice (according to Duguit) – According to Duguit, justice is defined as the attainment of social needs and obligations that men (people in the society) owe to each other being a part of the same community and therefore, the law should protect this social solidarity to get maximum good for the community, as the role of the State is limited to securing ends of social and economic justice for common good.

As per the facts and circumstances given in this case and based on the application of the Duguit theory of justice and doctrine of social solidarity, the doctor, Person A and Person B are part of the same community and are interdependent upon each other. Herein, Person A and Person B are dependant on the doctor for good medical service in the form of liver transplant which only the doctor can provide by taking away liver from an organ donor and transplanting it to the donee i.e. Person B in the instant case wherefore this leads to saving the life of Person B who is young, suffering from a genetic disease which can be cured of a liver transplant, and he can lead a long and healthy life. Since Person B was saved, henceforth she can contribute to the society economically and add value to the society whereas if Person A was given the liver, he could have died even after the transplant had taken place so neither Person A would have survived and led a long life and neither Person B who could have supported the other interdependent members of the society and therefore, from the community point of view, the doctor has taken the right decision to save Person B rather than saving Person A since saving Person B from the hands of death has contributed to social solidarity in a better way.

Realist theory of law

This theory believes that law is ambiguous and focuses primarily on judge-made law. Realists have tackled law positively and portrayed the law in the form of justice and natural law. Under the realist school, the judges are not to adhere to the strict concepts of law, and they can take into consideration the social ground realities when writing down their judgements. According to Friedmann, realism is to give coherence and modernization to the administration of law by taking into account technological and social changes. It was once said by Julius Stone that realism is an amalgamation of the sociological school of law being extended further since the functioning of the law should meet the needs of society.

According to the theory put forward by Vilhelm Lundstedt, Judges should think in terms of social objectives and missions, and not in terms of rights and duties. The American Realist School under Justice Benjamin N. Cardozo thought that judicial precedents should be adhered to when deciding cases, but such judicial precedents may be ignored when they are going against the spirit of justice. Sir Oliver Windell Holmes saw law from the point of view of a bad person wherein the accused before the court only thinks either about winning the case or losing the case. The judge is sitting in the courthouse to do justice in the matter before him and hence, he may resort to creative interpretation of existing rules (law) for doing justice to the parties before him. According to Justice Holmes, it is the duty of the judge to apply the law as he finds it and not seek to rectify inadequacies in the law by creatively interpreting the law but where there is a gap in the law, judges can read into the law and fill those gaps without shaking the fundamental foundation of the law.

In the case of United States v. Holmes, a ship named ‘William Brown’ sank after colliding with an iceberg. A lifeboat was taken out with 3 passengers – 1 boy and 2 men. After days on the lifeboat, to survive starvation, the 2 men ate the little boy. Afterwards, the 2 men were charged with manslaughter and first-degree murder. They were initially sentenced to 6 months imprisonment by the trial court but the High Court reversing the verdict of the trial court held that in absence of human contact, and while facing a life-death situation, such an act of murder can be said to be an act of necessity which is thereby excused by the federal law.

Therefore, by following the philosophy of Justice Cardozo, Justice Holmes and the precedent laid down in Holmes Case I, being the judge, have a duty to fill the gaps in the law. I can resort to creative interpretation but such interpretation should be consistent with the social goals and not disturb the fundamental base of the law. I am, thereby, of the view that on a close perusal of the evidence before me and the facts construed from the evidence, I must adhere to the language of the Penal Statue mentioned in S. 81 and give the benefit of the said section to the accused before me because even though the there is a clear murder as mentioned in Section 300 of IPC, but still it was envisaged by the Legislature that even though the penal law which prohibits a man from acting against the doctrine of social solidarity but some acts which breach the law but can be excused when done in good faith have to be consistent with the objective of the public good.

Decision

After going through the record and hearing out the learned counsel of the accused and the State, I have decided to acquit the accused from the charges of murder because the accused when acting to save Person B has made the correct choice in unfortunate circumstances wherein Person B who is more capable to serve the society consisting of each man dependant upon another whereas if Person A was saved then he would have been an economic burden upon the society, therefore I absolve the accused from murder charges and set him free.

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

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

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Preventing intrusion attempts in networks : an insight

By

Oishika Banerji

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November 28, 2021

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This article has been written by Mayank Bhandari pursuing the Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. This article has been edited by Zigishu Singh (Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho).

Table of Contents

Introduction

In today’s world where humanity is veering towards digitization, the protection of digital data has become of utmost priority. Almost all the industries, sectors, and lines of work have a digital presence either through social media or a website. While the digital world seems to be running smoothly, Network intrusion enters in the picture and disrupts digital peace by jeopardizing the security of the networks and stealing valuable information and data from the encroached network. Cyber security plays a pivotal role in thwarting intrusion attempts and protecting network resources and data. It is a constant tussle between the cyber-security personnel and the intruders or hackers, and viewing the situation in a different light, it is almost a test of skills for both sides and a layman would easily become the victim of such an intrusion without a cyber-security professional beside him. We need to be more attuned to the idea of such intrusions and should have a brief idea about the various intrusion stratagems and Network intrusions. Network intrusions are at an all-time high as the majority of businesses and industries are digitized in our contemporary world and a multiplicity of laws have also been enacted in various nations across the globe including India.

Why should one be concerned about data breach?

Any company that has an internet connection is vulnerable to network intruders. Blocking services you don’t need at your network’s entry point (through a network firewall) or on your machine is the best approach to stop them (by a personal firewall). An intruder, on the other hand, may try to break in by using services you use regularly, such as online surfing or email. In this instance, an intrusion prevention system (IPS) is required to prevent unauthorized access.

The cost of a data breach is increasing. According to a recent IBM report, the average cost of a data breach has increased by 12% in the last five years, reaching $3.92 million per event. Furthermore, data breaches resulting from hostile digital assaults were both the most prevalent and the most expensive examples of security events, according to this report. The cost of these breaches was $4.45 million per event, roughly one million dollars higher than the cost of a breach caused by a system flaw or human error. Here are 6 phases through which the attacker initiates and executes a network intrusion:

In the first phase, the attacker studies the type of network they are looking to intrude, trying to understand the functionalities of the network and finding vulnerabilities to exploit. A lot of research is generally done in the process.
In the second phase, the hackers seek an initial exploitation route to obtain access to their target’s network. Spear-phishing, water-holing attacks, leveraging a known CVE(Common Vulnerabilities and Exposures) vulnerability, or SQL(Structured Query Language) injection are common examples of this phase.
In the third phase, attackers that succeed in gaining initial exploitation want to stay in the network for a long time. They usually accomplish this through increasing privileges, locating Run Keys, or gaining access to scripts.
In the fourth phase, the hackers are certain that they can remain undetected on a network; they may begin their nefarious activity by installing tools. Attackers frequently start with simple tools and work their way up to heavier, more complicated scripts and programs that do the “real” job.
In the fifth phase, the hacker starts moving laterally in and around the network to look for what they are really after.
In the sixth phase, the attacker completely controls their target and all they need to do is look for what they are after and leave the network undetected.

Various ways through which attackers tend to intrude on the networks

Stolen data: Attackers generally utilize the existing data, devices and processes and stolen credentials when compromising networks. These devices, like operating system utilities, business productivity software and scripting languages do not tend to pop up on the radar as malware and have very legitimate usage as well. In reality, in the majority of the situations; the use is justified by business, allowing an attacker to blend in.

Absence of a single route: If a network allows for asymmetric routing, attackers will frequently use numerous routes to get access to the targeted device or network. By having a substantial fraction of suspicious packets transit particular network segments and any relevant network intrusion systems, they can avoid being noticed.

Buffer overwriting: Attackers can substitute regular data in specified parts of computer memory on a network device with a barrage of commands that can subsequently be utilised as part of a network incursion by overwriting certain memory locations. If boundary-checking logic is introduced and executable code or malicious strings are recognised before they can be put to the buffer, this attack approach becomes much more difficult to execute.

Protocol attacks: Protocols like ARP(Address Resolution Protocol), IP(Internet Protocol), TCP(Transmission Control Protocol), UDP(User Datagram Protocol), ICMP(Internet Control Message Protocol), and many application protocols might leave network breaches accidentally exposed, For example, attackers frequently mimic protocols or spoof protocol messages in order to undertake man-in-the-middle attacks and get access to data they wouldn’t otherwise have, or to crash targeted devices on a network.

Flooding: Attackers can cause chaos and congestion in network settings by producing traffic loads that are too enormous for systems to fully filter, allowing them to carry out assaults without being discovered.

There are a plethora of known and unknown techniques through which attackers indulge in network intrusions. After the completion of such intrusions the attackers initiate the cover up process via:

Deletion of Logs: Attackers can make it virtually hard to figure out where and what they have accessed by erasing access records (that is, without enlisting the help of an extensive cyber forensics team). Regular log reviews and centralised logging can assist mitigate this issue by preventing attackers from tampering with logs of any type or location.

Use of encryption: One of the simplest strategies attackers may execute to mask their movements from network-based detections is to encrypt data taken from an organization’s network environment (or just cloak any outgoing traffic so it seems normal).

Use of Root-kits: Root-kits, or software that allows unauthorized users to obtain control of a network without being noticed, are especially successful at hiding attackers’ footprints since they allow them to explore and exploit systems at their leisure.

Detection and prevention of network intrusion

The IPS is generally installed immediately behind the firewall and acts as a second layer of inspection, filtering out potentially harmful information. Unlike its predecessor, the Intrusion Detection System (IDS), which is a passive system that analyses traffic and alerts threats, the IPS is installed inline (directly between source and destination), actively evaluating and taking automatic actions on all traffic flows that enter the network. These activities are more specific:

An alarm is sent to the administrator (as would be seen in an IDS) getting rid of the harmful packet traffic from the source address.
Re-establishing the link to avoid decreasing network performance, the IPS must function efficiently as an inline security component.

It must also be quick, because exploits might occur in real time. In order to reduce threats and false positives, the IPS must detect and respond properly (legitimate packets misread as threats).

Unified Threat Management (UTM) from Seqrite is a one-stop shop for all business security needs, with intrusion detection and prevention included as standard. The built-in IDS and IPS components of UTM keep businesses safe by Real-time threat monitoring, evaluation, and detection Denial of Service (DoS) and avoidance of Distributed Denial of Service (DDS) attacks.

Keeping attackers from discovering open ports, Seqrite UTM’s IPS functions as a security barrier against unauthorised network intrusions and prevents a wide range of DoS and DDoS assaults from gaining access to your network. This level of security may benefit a company in a number of ways, including; providing a quick picture of network security within the network and protection of enterprise assets Triggers are set off when a suspected breach or activity in the network is detected. There a number of methods and systems to prevent network intrusions:

NIPS (network-based intrusion prevention system): It analyses protocol behaviour to monitor the whole network for suspicious traffic.

Wireless intrusion prevention system (WIPS): It analyses wireless networking protocols to monitor a wireless network for suspicious traffic.

Network Behavior analysis (NBA) analyses network data to identify threats that cause anomalous traffic patterns, such as distributed denial of service assaults, certain types of malware, and policy breaches.

HIPS stands for host-based intrusion prevention system. It’s a built-in software package that monitors a single host for suspicious behavior by examining events that take place on that host.

Case study

The Bangladesh Bank robbery, sometimes known as the Bangladesh Bank cyber heist, was a theft that occurred in February 2016. Security hackers used the SWIFT network to send 35 bogus orders to transfer over $1 billion from a Federal Reserve Bank of New York account belonging to Bangladesh Bank, the country’s national bank. Five of the thirty-five forged orders were successful in moving US$101 million, with US$20 million going to Sri Lanka and US$81 million going to the Philippines. Due to suspicions prompted by a misspelt command, the Federal Reserve Bank of New York denied the remaining thirty transactions, totaling US$850 million. Since then, all of the money sent to Sri Lanka has been retrieved. However, only around $18 million of the $81 million sent to the Philippines has been retrieved as of 2018. The majority of the money sent to the Philippines ended up in four personal accounts controlled by single people, rather than firms or corporations.

Conclusion

Network Intrusions are going to pose an even greater threat in the times to come and corporations, government and individuals need to become more vigilant about their digital data and networks. As the attackers perpetually invent and discover new methods to intrude and break in the system, the defenders should simultaneously tackle such attacks and intrusions and strive to build a robust security system consisting of both preventive and detection functionalities. Network protection will be of utmost importance in times to come if it isn’t already.

References

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

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://t.me/joinchat/L9vr7LmS9pJjYTQ9

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

Unclear definition of the term ‘obscenity’ in law

By

Rachit Garg

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November 28, 2021

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This article is written by Harmanjot Kaur Kang and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Table of Contents

Provisions under the Indian Penal Code

With the recent controversy about the Myntra logo, the burning issue of the clear definition of obscenity came into the picture. It was claimed that it is similar to the female body part of two legs far apart displaying the public region.

Section 292 of the Indian Penal Code defines ‘obscenity’. The section reads the following lines:

According to subsection (2), a book, leaflet, paper, composing, drawing, painting, portrayal, figure or some other item will be viewed as revolting in the event that it is lewd. This as such implies that it requests to the scurrilous interest. The impact of its substance, or (expecting there are more than one particular thing) any of them, tends, whenever taken in general, to debase and ruin the individuals who might peruse, see, or hear it, under every single important situation. Whoever would do the following activities would be held liable under the Indian Penal Code for the offence of obscenity.

(a) Possessing the vulgar item and its display

For the motivation behind the deal, enlist, appropriation, public presentation or dissemination, makes, creates or currently possesses any revolting book, leaflet, paper, drawing, painting, portrayal or figure or some other vulgar item at all, or

(b) Import or Export

In case if there are imports, trades or passes on any foul item for any of the reasons aforementioned, or knowing or having the motivation to accept that such article will be offered, let to recruit, dispersed or openly displayed or in any way put into dissemination, he would be liable for offence.

(c) Gets the benefit arising out of the transaction

In case anyone participates in or gets benefits from any business over the span of which he knows or has the motivation to accept that any such indecent articles are for any of the reasons aforementioned, made, created, bought, kept, imported, traded, passed on, freely showed or in any way put into the flow, he would be liable.

(d) Promotes demonstration of the profane item

In case anyone promotes or spreads the word about using any and all means at all that any individual is locked in or is prepared to participate in any demonstration which is an offence under this segment, or that any such profane item can be obtained from or through any individual, he would be liable.

What would be the punishment for obscenity under Indian Penal Code?

In case of the first conviction

In case of the first conviction with imprisonment of one or the other depiction for a term which might reach out to two years.

Additionally, entitled with a fine which might stretch out to 2,000 rupees.

In case of the second conviction

In case of a second ensuing or conviction, with the detainment of one or the other portrayal for a term which might reach out to five years.

Furthermore, the accused can be made liable for a fine that might stretch out to 5,000 rupees.

Exception

This segment doesn’t stretch out to—

(a) Use for Scientific Purpose or Workmanship:

In the case where any book, leaflet, paper, composing, drawing, painting, representation or figure—(I) the distribution of which is ended up being supported as being for the public great on the ground that such book, flyer, paper, composing, drawing, painting, portrayal or figure is in light of a legitimate concern for science, writing, workmanship or learning or different objects of general concern, or (ii) which is kept or utilized real for strict purposes;

(b) Any Ancient Monument or Archaeological Findings:

In case there is any portrayal moulded, engraved, painted or in any case addressed on or in—(I) any antiquated landmark inside the significance of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or (ii) any sanctuary, or on any vehicle utilized for the transport of icons, or kept or utilized for any strict purpose.]]

However, on a deeper analysis, we observe that the Section only defines the term selling, circulating and distributing such goods which are classified as indecent. However, the definition of the term ‘obscene’ is not defined anywhere in the Act. This shows that the Act is not exhaustive in itself. It is open to interpretation based on social factors. However, here the question arises about the changing nature of people’s opinions with time.

Why was the Myntra Logo criticised worldwide?

In the Myntra case, the logo representing the legs apart was called obscene. However, when it comes to the selection criteria for the UNESCO list and the Section 262 controversy, there is a deep silence. Is it such that the implicit provision of ‘privity of contract’ under the Indian Contracts Act should be read in a broader sense so that, if it would be beneficial to India, the thing would be implicitly agreed with a shy smile?

Difference between the terms: ‘indecency’, ‘grotesque’, ‘profanity’ and ‘obscene’?

In the US case, ACLU v. Reno, the constitutionality of a statute employing the word ‘indecent’ without further definition was found to be so “unconstitutionally vague … as to violate the First Amendment”:

In this statute, “indecent” is an undefined term with no guidelines at all about its parameters. An entirely different federal crime gives an entirely different definition to indecent [18 USC para. 1461 says, “The term ‘indecent’ as used in this section includes a character who is likely to incite arson, murder, or assassination.”]. Although not directly applicable, this example illustrates the vague nature of the term and the need for a clear definition, especially in a statute that violates protected speech.

Who discovered it first?

The exact date of the definition is unknown till date. However, the irony lies in the fact that before the production of cloth by early man, the early man also used to wander around naked at every place. So, even though these people were not wearing anything, they won’t be punished by anyone for obscenity.

Similarly, in the present-day scenario, we see that there are certain tribal areas that wear the leaves of local trees. Such people are not classified as indecent.

Why was the issue unnoticed for such a long period of time?

We see that it was only after the Gupta age that the concept of nudity was removed from various architecture and sculptures. However, here also we see the exception wherein the Khajuraho Temple of Madhya Pradesh has erotic pictures carved on it. Similarly, in Jainism, the image of Lord Mahavira in the Digambar sect is shown as a naked body who is sitting and meditating.

Provisions under International Convention

There is no international convention that determines ‘nudity and obscenity as the areas to be defined in clear terms. Similarly, we see that the governing principles are determined according to the culture of a place. We see that even in the Hollywood songs such as Call You Mine, Ready for It there is a certain degree of nudity. However, these songs are acceptable in the European and American nations.

Similarly, in the Indian subarea, we see that the south Indians are more liberal with relation to clubbing and going to bars. However, in North India going to clubs and bars would be linked to brash behaviour, izzat, piyaakar and certain similar terms.

What is the position in various countries?

The following keystones present a broad overview of the provisions. These can be seen in the following subheads:

In Japan

In Japan, the term ‘ecchi su’ is defined to express something indecent and unscrupulous. This even includes the areas such as ‘Manga’comic where the areas such as sexually pervert scenes are covered only be the rays of sunlight, water particles while bathing or leaves in case the comic character is in an open area.

In the USA

In USA a special test is run, which is known as Millers Test. Here the distribution of anything to anyone less than 16 years of age is an offence. The jurisprudence was established under the cases of Miller v. California, Smith v. United States, and Pope v. Illinois. It has to qualify three steps, these are as follows:

When applied to contemporary adult community standards, whether or not the matter appeals to prurient interests (namely, an erotic, lascivious, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion);
According to contemporary adult community standards, whether the subject matter depicts or describes sexual conduct in an offensive fashion (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sadomasochistic sexual abuse); and
If a reasonable person finds the matter to be lacking in serious literary, artistic, political, or scientific value.

In Canada

The Canadian Criminal Code defines obscene material as follows:

For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.

In England

In the case of R vs Hicklin, the test of ‘literary morality’ was laid down. It was held that the law in England is more related to morality and ethics. In England, pornographic films are included as a major part constituting the legislation. In the landmark judgement of Towne Cinema Theatres Ltd. v. The Queen (1985), the Canadian court established the need to use the ‘Community standard test’ not the Hicklin test in order to determine obscenity.

In South Korea

In South Korean law, displaying of male genitals in public would amount to offence, unless it is supported with some artistic, cultural or educational settings.

In China

Under China law, a standardised law named Control of Obscene and Indecent Articles Ordinance (Cap. 390) (“COIAO”) was enacted in 1987 provides the explicit provisions under Section 10 to qualify the provisions. These are:

These include:

(a) The moral standards generally accepted among reasonable members of the community;

(b) the defining characteristic of the article, or of the subject as a whole;

(c) the likely recipients’ class or age;

(d) If a matter is publicly displayed, the location where it is displayed and the class or age of likely recipients; and

(e) whether the article or matter has a genuine purpose

In Africa

In the case of Nyambirai v. National Security Authority, the Court of Zimbabwe laid down three specifications related to the restriction of freedom of speech. These are termed as ‘three-tier systems. These are as follows:

(i) the legislative objective is sufficiently important to justify limiting a fundamental right;

(ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.

In Iran

In case of Iran producing pornographic material can amount to death sentence. Thus, we see that there is are very stringent laws here. It can be equated to rape offences in India.

In India

Under Section 294 of Indian Penal Code, an Israeli couple was married according to Hindu Traditions. However, they were caught kissing in public. The magistrate thereafter, slapped them a fine of Rs.500/- for committing an indecency.

In another illustration, a tourist from Finland was found guilty under Section 294 as she was skinny dipping in a local hotel. Later it was discovered that she was streaking on the streets up to her hotel.

In the case of Bobby Art International v Om Pal Singh Hoon, the film scene was demonstrating rape scene and streaking up a scene where the movie Bandit Queen was banned, due to such contentions related to obscenity. On the similar lines, in case of Ranjit Udeshi v State of. Maharashtra 1965), it was held that in comparison of the Fundamental Right of Article 19(1) and Section 292, the reasonable restriction laid down by Section 292 was held to be constitutional in nature.

What are various tests which are used to check whether the content qualifies as ‘obscene’?

Under international law, Article 19 of the International Covenant on Civil and Political Rights permits restrictions on freedom of expression only as necessary to protect the rights and reputations of others, national security, or public order, health or morals. There are certain tests such as ‘Hicklin test’ in the United Kingdoms’; ‘Millers Test’ in the USA, ‘community standard test’ in India.

What should be the standards established by Media Laws?

The laws related to obscenity are constantly evolving. There is no clear definition of these laws. In the case of Ajay Goswami v. UOI proposed a new test called the responsible reader test wherein a reader should be cautious in this era of technology. On the similar lines, in M. Saravanan & Dr. L. Prakash v. State, a doctor was punished under Section 67 IT Act, 2000 for online distribution of lewd photos and videos of a woman just for the purpose of making money.

However, it is surprising that it was only after the Gupta period that nudity in statues and sculptures was removed. Before the Gupta age, nudity was allowed. This can be proved by Harappa’s famous ‘dancing girl’ who forms one of the prominent figures of the Harappan times. However, it is still very controversial, that if Khajuraho temple monuments were explicitly displaying nudity and various erotic poses, then why has it been included in the UNESCO World heritage sites? Comment your views about it below.

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Role of T.N. Seshan in election reforms in India

By

Rachit Garg

-

November 28, 2021

0

Current issues related to the Election Commission of India

This article has been written by Sukeerti KG and this article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Table of Contents

Introduction

India is the world’s largest democratic country. In a democracy, the election represents, in certain cases, apotheosis of politics. For embodying a fair election process, an independent autonomous body called the Election Commission was created under the authority of Article 324 of the Indian Constitution. In 2019, the Election Commission had to oversee the largest election in the world which consisted of 90 Crore eligible voters. Dr.Ambedkar rightly remarked, ‘that in the interests of purity and freedom of elections to the legislative bodies, it was of the utmost importance that they should be free from any kind of interference from the executive of the day. Though the words of Ambedkar are much valuable, the actual independence of the Election Commission from politics is a conundrum.

Initially, even after the constitution of the Election Commission (hereinafter referred as EC), there was no ‘Code of Conduct’ which needed to be observed by the parties and representatives during the electoral campaign. In 1960, a model code of conduct was issued in the Kerala Elections which was more of a guideline rather than a requirement. A former CEC asserted that ‘the EC during the 1970s and 1980s was seen as a sidekick of the government…. You could find the CEC waiting outside the office of the Law Minister…. The ECI is [now] an independent and autonomous body. It does not have political masters’. Subsequently, after a lot of trial and error, the EC slowly developed the Code of Conduct which needed to be observed during the election and long after, in the 1990’s it became authoritative. The persons who violate the code of conduct had no impact and governmental influence over the election process was expected. Corruption cases, electoral frauds, undue influence by the political parties upon the voters were common.

Tirunellai Narayana Iyer Seshan, aka, T.N. Seshan, who was the Chief Electoral Commissioner, could be said as the first person who gave a face to the EC and transformed everyday politics. High-end politicians were afraid of the EC, as they were not able to go on their usual business, with the EC watching over them. Still, the model code of conduct did not have any penalties nor were they authoritative. It was the CEC, who had to use the powers of the EC in a different way so as to enable a minimum requirement of the model code to be followed. He certainly shaped and moved a step forward towards the free and fair election.

About T.N. Seshan – A brief Introduction

T.N.Seshan was born on 15^th December 1932 in Madras. He holds a B.Sc degree in Physics and later cleared the UPSC exam and served as an IAS trainee. He served as a Collector in Madurai and later went to Harvard University to study Public Administration. He was appointed as secretary to the Atomic Energy Commission and served as a Joint Secretary for the Department of Space. He was also secretary of the Ministry of Environment and Forest, Ministry of Defence and as a member of the planning commission. It is fair to say that he had been deeply involved in governmental actions, understood the need for development and the needs of people.

Seshan as the Chief Electoral Commissioner

He was appointed in 1991 and served till 1996. During his period he had implemented several standards and it was under his rule that the uniform Voter ID was issued to all the eligible voters. Some of his main codes of conduct were:

Curbing bribes;
No distribution of liquor;
No use of loudspeakers without permission;
No booth capturing;
Not intimidating or coercing or influencing the voters;
Not damaging public walls with posters and paints;
Not using official machinery to conduct electoral work;
No use of religious places;
Not appealing to voters ‘ caste or communist feelings;
Submitting poll expenses and monitoring by EC; and
Not making fake promises in the election manifesto.

Reforms brought in by T. N. Seshan during his tenure

The tenure served by Seshan could be viewed as a season for changes and bold reforms. His opinionated reforms made him to be remarked as ‘legend’ and ‘source as inspiration’. He categorised nearly 150 electoral malpractices as a part of electoral reform. Some of the key reforms are explained below.

Support of opposite parties and small parties

The EC began to strictly enforce the model code of conduct, which was favourable to the opposing parties, as they could win in a fair election which is not influenced by the party which forms the government. The opposite party were ready to support the EC and the code of conduct, as it enabled them a chance to win by not allowing the ruling party to lure voters by attractive government policies at the end of tenure which would mostly not be implemented once the party comes into tenure. Smaller parties supported ECI efforts to clean up electoral rolls, as inflated rolls allowed major parties to fraudulently exaggerate vote share.

Prohibiting liquor distribution:

Seshan prohibited the use and distribution of liquor during election, and more importantly for 3 to 2 days before the date of election. Sobriety of voters during voting is important and alcohol addicts were easily influenced by parties by supplying then with intoxicants. It is said that Goa, where liquor is easily available, went up dry before election when T.N.Seshan was the CEC.

Misuse of government machinery

Sheshan prohibited the use of Governmental Cars and people who work for the government, etc should not be used by the ruling party to conduct political campaigns. Initially, for security reasons, the Prime Minister can use the Security and vehicles for his safety which was later extended to Chief Ministers and other ministers as they were at risk of being hurt and thus their safety is of utmost importance. Even though they are allowed to use government machinery, they are not supposed to use it for purely political campaigns and the two are essentially distinct.

Model code of conduct – effective period

To curb electoral fraud and voter influence, the EC recommended that the code would come into force immediately after the official announcement of the date of the election. It was strongly opposed by the political parties, which led to the filing of a case in which the EC agreed that it would normally be more than 3 weeks prior to official notification of the elections, but the EC otherwise got what it was wanted.

Using electoral powers to punish violations in code of conduct

The EC in order to enforce the Code of Conduct threatened to postpone or cancel the elections in case of violations. This was unprecedented but Seshan used his activist ways to bring about changes. He also stopped several election campaigns in midstream to prove that he wouldn’t hesitate to cancel or postpone elections in case of violation of the code of conduct. He once stopped a by-election in Ajnala, Punjab when the government included promises to include Dalit – Christians on as a Scheduled Caste.

Keeping the walls free from political thoughts

The public walls would be full of epic murals and posters during the election. But the ECE in 1994, ordered the State Government to take action against political parties who defaced the walls of buildings during the election and also to remove the posters and whitewash the walls after the elections. This was highly inconvenient to the political party who were used to branding their symbols in walls and thus criticised him as being an extended Environment Minister (as a jab to him working as a Secretary for the Ministry of Environment and Forests).

Restriction of use of speakers and timings for public meetings

He also prohibited the use of loudspeakers without previous authorisation and limited their timings from 8 am to 7 pm for moving vehicles. Meetings must be scheduled before 11 pm in rural areas and 10 pm in urban areas.

Booth capturing

Under his strict watch, in the 1993 elections, in Uttar Pradesh, the booth capturing count fell to 255 – from 873 in 1991. The number of polling day killings also fell from 36 to three. The number of constituencies in which polling had to be suspended or deferred, also dipped to three compared to the previous 17.

Money and muscle power were not the only things that Seshan tried to curtail. In all states, dry days were declared six days before polling.

In the 1996 general elections, the Election Commission deployed 1,500 observers – of three per constituency – for monitoring the elections. Polling stations were run by around 1.5 million state employees, while over 600,000 security personnel were deployed. Some 300,000 people were placed in preventive detention, including 125,000 in Uttar Pradesh, and 59,000 in Madhya Pradesh, where 87,000 firearms were also seized, according to reports

Election manifesto:

The ECE issued an Ordinance that empowered the EC to derecognise a political party if they blatantly violate the Model Code under the Election Symbol Ordinance Act. The EC issued a notice to all political parties to submit their Election Manifesto for review. This outraged the Political Parties and all faced increasing scrutiny by EC and videographers were sent to the Electoral Events and the tape was brought back to the EC to be reviewed at a Control Room.

Publicity for educating the voters on a moral code of conduct

Seshan was usually in the spotlight and used the print media to educate the young middle-income voters who formed the majority of the population. They were greatly inspired by how the EC worked with ECE directions. He continuously made press releases and toured the country excessively to keep politicians in line. A Columnist noted that he was at least in the headlines 3 times a week. It made the public more conscious about the electoral practices and the underlying principles of free and fair election to ensure Democracy.

Criticism about T.N. Seshan

Seshan was highly criticised for misusing the power as an Election Commissioner. In order to curb his powers, the Legislature amended the Laws which enabled them to appoint Joint Election Commissioners and Appointed M.S. Gill and G V G Krishnamoorthy. TN Seshan filed a case in the Supreme Court challenging the authority of the Legislature which was termed by the Supreme Court as ‘airing’ dirty laundry in public. The appointment was held to be valid and within the purview of the Legislature. But this in no way curtailed the power of the Election Commissioner as the Supreme Court ruled that the Joint EC’s cannot by voting overrule the decisions of the EC.

He was referred to as an al-seshan dog by a former member of the Cabinet. There were some comments made by a Columnist, ’We the voters are not nursery children, who require to be led by EC’s grandfatherly role’.

Overlap of regular governmental policies along with campaign manifesto. Any policy which is introduced was considered to be influencing the public on false pretences. The Hindu remarked that the Code of Conduct is not a license to freeze normal governance.

T.N. Seshan Statements:

Show me one instance where I have done anything that is not stated in the Constitution about the powers of the Election Commission, and I will quit.
Do you think I should allow politicians to commit dacoity on democracy?
[To P.V. Narasimha Rao] Mr Prime Minister, the only offices I aspire to now are those of the president and prime minister of India and, to my advantage, both are occupied.
Give me ten years and I can make Mera Bharat [my India] mahaan [great] again. It will take me ten years, no more, but do you have the courage for it

Conclusion

T.N. Seshan is undoubtedly a fearless man who gained a lot of political enemies during his tenure. He contested in the 1997 election for President and lost it. He led a quiet life in Chennai with his wife. The acts during his tenure as Chief Election Commissioner will always adorn the post of the CEC. He received the Ramon Magsaysay Award for government service in 1996. He passed away on 10^th November 2019. Undoubtedly, he has contributed a great deal in shaping modern Electioneering.

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All about loss and abandonment under Marine Insurance Act, 1963

By

Rachit Garg

-

November 28, 2021

0

marine — Image source: https://bit.ly/2FJa1N8

This article is written by Sakshi Srivastav, from RGNUL, Punjab along with co-author Prakhar Mishra, from NLUO, Odisha and this article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Table of Contents

Abstract

Marine insurances, which are agreements between an insurer and the assured for indemnification of the latter on account of marine losses (losses relating to the sea), are one of the notable domains of Insurance law. Marine insurances, the provisions for which are contained under the Marine Insurance Act, 1963, have a striking feature in the form of the doctrine of constructive total loss and abandonment, used in reference to total losses that are not of actual nature. The authors, through this article, have attempted to examine the concepts of constructive total loss and abandonment and to understand the purpose behind applying the said concepts in marine insurance cases.

Introduction

Sections 55 to 66 of the Marine Insurance Act, 1963 (hereinafter referred to as MIA) enshrine the principles related to loss and abandonment as applicable to marine insurances.

Section 55 makes it clear at the offset that only those losses that have a reasonable proximate relation with the perils the insurer(s) has insured against could the assured person claim indemnification. Thus, Section 55, by making a demarcation between the losses that could be indemnified and those that cannot, effectively excludes certain losses from the ambit of insurance. Further, it also places, unless they are specifically included in any insurance policy, a general exclusion on the following losses-

Any loss that takes place owing to negligence or any intentional mis-conduct on the part of the assured. However, as an exception, the aforementioned would not be excluded, except if the policy so mandates, from the ambit of insurance when such negligent loss has been caused owing to a peril the assured was insured against.
Any loss, except if the policy so mandates, that is caused to the assured due to any delay even if the same has been caused by a maritime peril.
The general rule is that the assured does not have the right to seek indemnification from the insured if any damage to the ship or the cargo that has taken place does not have a proximate relationship with the peril the assured was insured against. Similarly, damage caused due to gradual wear and tear of the ship or any other insured object, or its ordinary leaking and breaking, or owing to its innate flaw, or by rodents is not qualified for insurance, except if the policy so mandates.

The aforementioned raises questions about the scope of the term “proximate cause” as it is fundamental to the inclusion or exclusions of the losses from the purview of insurance. The High Court of Calcutta relied upon a series of judgments to elucidate its understanding of the said term in the 1972 case of A. Akooji Jadwat Pvt. Ltd. vs Oriental Fire & General Insurance Co Ltd.

Facts of the case

The ship of the assured that was insured against the peril of detention, capture, arrest, etc. during wartime was captured by Pakistan during the 1965 Indo-Pak skirmish. The insurer refused to indemnify the assured stating that Pakistan had not declared any war on India and, therefore, the said clash was an informal war and such wars were not covered under their insurance policy.

The ruling of the Court

The HC ruled that the insurers could not take the aforementioned excuse to free themselves of their liability. Any hostility on the part of an enemy state will be covered under the policy of the defendant insurers.

The HC reflected upon the extent of the term “proximate cause” and held that any loss which occurs to which the peril insured against was the direct cause or that the peril had a predominating and efficient effect on it could be said to be proximately caused by the said peril.

In the case of Canada Rice Mills Ltd. V/s Union Marine & General Insurance Co Ltd, a ship was transporting rice and owing to the severe weather, the assured shut down all the ventilators of the room where the cargo was stored to prevent water from coming inside and damaging the rice. However, this led to the overheating of the cargo and they were damaged. The judicial court held the said loss to be a loss owing to the peril of the sea. The Judges opined that the rough weather, being a peril of the sea, served as a proximate cause for the shutting down of the ventilators as the same would not have been done except for the former and therefore both the factors must be viewed together and not separately.

Now, all those losses, which have not been excluded from insurance indemnification under Section 55, have been divided into two categories-

Partial loss
Total loss

Total loss

In cases of marine insurances, the total loss has been categorised into two divisions, namely, actual total loss, and constructive total loss.

Actual Total Loss

As per section 57 of the MIA, an actual total loss could occur in three situations-

Destruction of the insured object.
When extensive damage is caused to the insured object which changes its very inherent nature and quality.
Irretrievable deprivation of the insured object to the assured.

While the first two cases make the ascertainment of a loss as actual or constructive relatively easier, it is the third scenario where determination becomes difficult or a little dubious to fathom. In the case of George Cohen Sons and Co v/s Standard Marine Insurance Co Ltd, an insured ship had been taken to the port but it somehow went shore. The British Court observed that the assured had not been irretrievably deprived of the ship. The process of retrieval, the Court opined, would be difficult and also expensive to a large extent but would not be impossible. Therefore, the Court held the aforementioned loss to not be in the nature of an actual total loss. Further, in the case of Loyal Marines v/s National Insurance Co Ltd, it was found that the insured ship had got submerged in the sand up to its deck and it was therefore not possible to retrieve it for the use of the assured. The Court declared the said loss to be an actual total loss and asked the insurers to indemnify the assured for the same.

Apart from the foretasted three scenarios, a missing ship that is insured, of which nothing has been heard about even after the passage of a significant time period, would also be deemed to have been actually totally lost and the assured would be eligible for claiming indemnity.

Constructive total loss

The term constructive stands for something which is not explicit but derived from conjecture. Applying the said definition to understand a constructive total loss, it can be said that when an actual total loss defined under Sections 57 and 58 have not explicitly taken place but the loss caused is such that the insured object is as useless as it would have had been in case of an actual total loss.

Section 60(1) of the MIA, giving out a general definition of a constructive total loss, states that in case an actual total loss of the insured object becomes inevitable, or that prevention from the same demands the incurring of an expense higher than the value of the insured object, it is said that a constructive total loss has taken place. In the case of Marstrand Fishing Co Ltd V/s Bear, it was stated that the inevitability or unavoidability of the actual total loss must be determined on the basis of the facts and not on the basis of what the assured believed to be true. If what the assured believed to be true but was not true in fact, it is out of the question to consider such loss as a constructive total loss.

Further, Section 60 states the following to further explain what particular instances could lead to a constructive total loss-

Where the assured loses the possession of the insured object owing to a peril of the sea they were insured against and recovery of possession is either a) not possible, or b) can be made possible but only by incurring such cost that would go beyond the value of the object.
The damage caused to the insured object, owing to a peril of the sea the assured was insured against, is so severe that it could only be repaired by incurring such cost that would exceed the value of the object.

Effect of a constructive total loss

In case the loss in the nature of the aforementioned takes place, the assured could either abandon the object or continue possessing it. In the case of the former, the loss is to be treated as an actual total loss, whereas if the assured does the latter, they are said to be treating the loss as a partial loss. Abandonment is thus a necessary prerequisite for a loss to be deemed as an actual total loss. The concept of abandonment has been discussed in greater detail in the subsequent chapter.

Defining the said term, Lord Atkin in the case of Moore & Gallop v Evans, (1918) AC 185, remarked that it is a form of amalgamation of a total loss and a partial loss. It lies somewhere in between of the both with its determination dependent upon the doctrine of abandonment (discussed in the subsequent chapter).

However, the application and exhaustibility of a constructive total loss as defined under Section 60 depend upon the terms and conditions as stipulated in the marine insurance policy on a case to case basis. The Supreme Court of India, in the case of Peacock Plywood (P) Ltd v/s Oriental Insurance Co Ltd, ruled that if any provision of a marine insurance policy does not correspond to what is mentioned in Section 60 of the MIA, the former will prevail over the latter.

Difference between an actual total loss and constructive total loss

In simple words, the difference between the two aforementioned types of total losses is that while the former is a factual total loss, the latter is but a legal fiction, created to give those losses that are akin to an actual total loss equitable protection. Thus constructive total loss is a total loss in law and spirit.

Partial loss

Section 56 of the MIA defines partial loss as any loss other than a total loss. While the exact definition of Partial loss cannot be found in the MIA, Sections 64-66 deal with various components of a partial loss, namely, average general loss, particular average loss, and salvage charges.

General average loss

Section 66 of the MIA defines general average loss as any loss caused by a general average act, which is any wilful momentous expense or sacrifice carried out by the assured to prevent the insured object from being damaged by a peril insured against. The person carrying out such a general average act has the right to ask for contributions from other persons who have any interest in the insured object. Then, the assured can claim for indemnification from the insurer for such part of the money or sacrifice which is attributable to him after contribution. However, the insurer cannot be compelled to indemnify the assured for a general average loss if the general average act was not incurred for the purpose of preventing any damage or prospective damage to the insured object. All the aforementioned provisions, however, are dependent upon the terms of the marine insurance policy.

Particular average loss

Any loss which is not a general average loss falls under the category of particular average loss.

Salvage charge

Salvage charges are charges that are incurred to avert any loss flowing from the peril insured against and can be indemnified to the salvor independently of a contract. The salvor can recover such charge either as a general average loss or a particular average loss, depending upon the circumstances in which the salvage charge was sustained.

The doctrine of abandonment under mia

As mentioned before, a constructive total loss cannot be treated as if it were a total loss unless the subject matter of the same has been abandoned by the assured. If the insured object that has suffered a constructive total loss is not abandoned, it is presumed that the assured is going to treat the same as a partial loss.

Notice of Abandonment

Now, after having abandoned the insured object, or after the intention of doing the same has been formed, owing to the occurrence of a constructive total loss, the assured needs to give a notice of abandonment to the insurer to express the bequeathing of his interest in the insured object in the favour of the insurer. Upon the acceptance of such notice by the insurer, the abandonment cannot be revoked. If, however, the assured fails to give such notice, the constructive total loss gets converted to a partial loss.

Following are certain rules that the assured needs to abide by with reference to notice of abandonment-

The insured needs to give such notice in writing or in oral or in such other form which clearly expresses his intention of bequeathing his interest in the insured object to the insurer.
The assured must exercise reasonable care before giving the notice of abandonment. In case an enquiry regarding the nature of the loss or the threat of loss is to be carried out, the assured must give the notice only after such notice when the truth has surfaced.
If the assured has given proper notice of abandonment, the refusal of the same on the part of the insurer would not affect the rights of the assured flowing from abandonment. The acceptance of the insurer does not have to express, it could be implied too. However, his silence would not imply acceptance.
The acceptance of the notice by the insurer makes the abandonment of the insured object/property irrevocable. Before acceptance, the assured is free to revoke his notice of abandonment which once final would lead him to bequeath all his interests in the insured subject matter.

While it is true that without giving the notice of abandonment, the constructive total loss cannot be treated as an actual total loss but only partial, there are certain circumstances that do not require sending the notice. These are as follows-

When the insurer has waived the notice of abandonment
When by the time the assured received the information about the constructive total loss, it is too late for any possibility of accrual of any profit to the insurer; the assurer is not bound to send the latter a notice of abandonment.
The insurer does not need to give any notice of abandonment to the insurer if the latter has re-insured his risk.

Effect of Abandonment

The effect of abandonment is that whatever little remains of the insured object/property becomes the insurer’s. By abandoning and serving notice about the same to the insurer, the assured gives away his interest in the insured object to the insurer. And if he follows the procedure properly, the constructive total loss he suffered is indemnified by the insurer as if it were an actual total loss. This is the benefit of abandonment to the assured, which if he had not practised would have led to the treatment of the loss as a partial one, leading to indemnification of a lesser value.

Now, after the insurer indemnifies the assured for the loss being treated as an actual total loss, the assured the benefits the insured derives from abandonment on the part of the assured as mentioned under Section 63 of MIA are as follows-

The insurer gets hold of all the freight that was in the course of being earned or that is earned after the loss. (for the latter, however, such amount that was spent in earning the fright after the loss would be subtracted)
If the ship is carrying the cargo of the owner, the insurer would be free to charge him for their transportation on the ship post abandonment.

Scope and limitatons

The application of the concept of constructive total loss is limited to the cases of marine insurances and one may wonder the reason behind the limitation of concept to cases related to marine insurances as well as its application to the same in the first place. To answer the aforementioned concerns, we need to understand the pith and gravity the marine cases entail.

One of the prominent examples of a constructive loss is when the insured ship gets captured by the enemy nation or any other entity, making the recovery of the good very unlikely. In this case, while the loss incurred is not an actual total loss because the ship has not been destroyed, or extensively damaged, or become irretrievable as the ship can definitely be recaptured; the assured has, however, lost its possession and is incurring losses equivalent to totally losing the object. To provide relief in such cases the concept of a constructive total loss, which came into being in the early nineteenth-century was conceptualised to protect, as remarked by Lord Alkin in the Moore case, the interests of the mariners who were engaged in this rather risky business of maritime trade, which required very heavy investment and where the probability of the occurrence of casualties was very high as navigation in the seas is a very dangerous activity. In the case of Goss v/s Withers, which was a case involving the capture of the ship, the Court held that the assured cannot be expected to wait for too long to know about the recapture of the ship, rather given the gravity of the financial strain the said incident has caused, he could be made to go ahead with getting his loss indemnified once he has served the insurers with the notice. The inherent risk involved in the business, coupled with the existence of a host of circumstances in maritime commerce and trade where a loss could not be absolutely said or proved to be an actual total loss but is equitable to the same in terms of its implication and nature, is what engendered the concept of constructive total loss and abandonment in the arena of marine insurances with the purpose of providing an impetus and protection to adventurers to enter the rather risky and expensive sector of maritime and navigation.

Explaining why the said concept could not be applied to any other insurance policies besides marine, Lord Atkin further observed that the underlying nature, circumstances and necessities giving birth to the concept of constructive total loss in marine insurances cannot be reasonably applied to other insurance policies.

Conclusion

The doctrine of a constructive total loss, owing to its hybridity wherein the notice of abandonment is the key to determining wherein such loss would be considered a total loss or a partial loss is, therefore, somewhat esoteric and peculiar. However, the nature and modalities of the maritime sector make the doctrine as relevant as it was more than a century ago. The doctrine has been given a fresh outlook to meet the needs of modern times. While earlier cases involving capture by enemy nations or pirates led to the application of the concept of constructive total loss the most, cases wherein the cost of repairing a damaged or injury would exceed the value of the ship altogether dominates the said concept’s area of application in the present times.

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Cyberspace and IPR issues : Indian perspective

By

Shoronya Banerjee

-

November 28, 2021

0

This article is written by Raunak Sood, a 4th year BBA LLB (Hons.) student studying at Bennett University, Greater Noida, pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

The IT Act has been successful in regulating cyberspace, but the IT Act has failed to award protection to one of the most important legal properties which arises out of the human intellect i.e., Intellectual Property (“IP”) which means knowledge and information which has been expressed in a tangible or an intangible manner and includes copyrights, patents, trademarks, geographical indications, and integrated circuits. The most challenging area within cyberspace is the infringement of IP and the inadequacy of the current legal framework (inclusive of Copyright Act 1957, IT Act and Trademark Act, 1999)

The Information Technology Act, 2000 (“IT Act”) has three main objects: firstly, to comply and effectuate the United Nations (“UN”) call for uniformity within the domestic law of the international community in order to replace the pen-and-paper based transactions with electronic transactions, communication, and storage; secondly, to facilitate electronic commerce (“E-Commerce”) through easier data exchange and storage of huge amount of information on the internet; and lastly, to make government based processes and procedures efficient and reliable through e-filing. The IT Act was formed to make e-commerce safer, but it has failed to address concerns of cybersquatting, copyright, trademark, and domain name infringement within cyberspace.

Another issue of authority and enforcement arises as to whether in this borderless internet, a court of law situated in India can issue orders in the nature of a global injunction, direct global blocking or direct additions, substitution or removal of domain names, trademarks, etc. on a global scale.

Since the internet is a superhighway of information where one of the main concerns surrounding cyberspace is the infringement of copyright, trademark, domain names, and piracy of other kinds of IP. The main problem is the lack of a sufficient legal framework since there is not much awareness about copyright issues, trademark issues, and other violations of IP rights taking place within the cyber domain. This article aims at listing out all the copyright issues, trademark issues, domain name issues, case laws, and further lists down the loopholes in the current legal framework. It also addresses some remedies existing in the current legal structure and the difficulty faced by courts in international enforcement of such remedies.

Infringement of copyright in cyberspace

Copyright is to protect the creations of authors, performers, artists, and other people who create literary, drama, films (cinematographic), sounds (recorded sounds), pictorial, graphical, and other forms of literary and artistic audio-visual works.The main legislative intent behind the enactment of the copyright law was to reassure, encourage and inspire writers, music composers, drama artists, and directors to create original works of authorship hence the limited right to reproduce copies (in electronic or other formats), make derivative work out of their original works, perform the art in public, making translations and adaptations. Piracy of original copyrighted material is very easy because of the internet, as it is very easy to make copies (software like Microsoft Word, etc.), translate (applications like Google Translate can be easily used to translate works into any language), make adaptations (using software like adobe photoshop) and violate other rights as mentioned in Section 14 of the Copyright Act, 1957 (hereinafter Copyright Act, 1957 has been referred to as “CA 1957”) by using openly available technology.

Infringement of copyright

A copyright is infringed where any non-licensed person (that person who has not been given a license or permission by the copyright holder) performs any act which contravenes the rights (enumerated in Section 14 of CA 1957) of the copyright holder. The copyright is said to be infringed whenever a sale, hire, exhibition, import of copies, and other infringing material which are prejudicial to the copyright holder are brought within the country.In the borderless internet, which is the superhighway of the information herein downloading, uploading, and just copy-pasting copyrighted information on a website is just a mouse click away. The current copyright law gives the copyright holder the special right to authorize the distribution of his own copyrighted work, but if such copyrighted material is on the internet then almost anybody can become a publisher because it is relatively easy to just download and save the work from a website (a website can be equated with a book or a magazine) without asking any form of license or consent from the copyright holder and reproduce the same on another website and claim credit for the handwork, skill, labor, and creativity put in by the copyright holder. Under Section 51 of the Copyright Act 1957, the burden of proof lies on the copyright holder to adduce evidence for proving the deceiving similarity and creating a prima facie case for the infringer. It is important to note that a website is liable to be given the same amount of protection as given to copyright infringement in the case of a book, magazine, or multimedia device. Copyrights cannot be vested in ideas, systems, and methods but most computers nowadays can reproduce pictures, illustrations, and graphics hence most of the copyrighted works can be easily infringed via the internet.

In the case of Religious Tech. Ctr. v. Netcom Online Communication Servers, the circuit court laid down the three main kinds of copyright infringement as follows:

Direct – Where there is a direct nexus with the violation of the rights given under the Copyright Act by the infringer. In the case of online infringement, it is very difficult to track down the infringer.
Contributory- Where internet service providers, website hosts, and other operators can be held liable for assisting other people in the infringement of copyright, herein the most essential ingredient which should be present is that the third party i.e., internet service provider or website host or the operator had constructive knowledge of the infringement taking place on their online platform or they have assisted, induced, caused or contributed towards that particular infringing activity to take place on their internet-based platform.

Furthermore, the Supreme Court of California in the case of Sega Enterprises v. Maphia, where the defendant Maphia was a bulletin board service operator who would allow other people to upload and download games produced by Sega Enterprises on their platform, the court, in this case, held that there was no direct infringement of copyright by Maphia because he was merely an operator of the bulletin board service but instead Maphia was liable for the contributory infringement of Sega Enterprises copyright on the games produced on it because there was an active solicitation of people to download rightfully copyrighted works as Maphia earned profits out of the same through the subscription money which he charged to various subscribers of his channel.

In the case of Fonovisa Incorporated v. Cherry Auction Incorporated, the court laid down the test for contributory infringement of copyright, the test states that whether the intermediary on the internet had “actual knowledge” of the infringements taking place on their platforms, and if the answer is in positive then yes there is a contributory infringement of copyrights.

Vicarious- Where the infringement is taking place over the internet platform/ website or the service provider and such infringement is giving a monetary benefit to the internet platform/ website or the service provider in such a case such third parties to the infringement are liable under the copyright law.

Under the IT Act 2000, we have Section 79 which talks about the exemption of liability of intermediaries and gives them immunity for any third party information originating on their servers, but the immunity is subjected to certain conditions enumerated in sub-clause (2) and (3). On a wholesome basis, the aspect of contributory copyright infringement has been covered in Section 79 of the IT Act, 2000, at the same time it has failed to recognise vicarious infringement of copyrights on the platforms of intermediaries. It is being argued by some people that “due diligence” under Section 79 covers vicarious copyright infringements, but this is an open-ended debate that should be subjected to a judicial review.

Therefore, it is concluded that major legislations like Copyright Act 1957 and the IT Act 2000 are silent on online copyright infringements, and even though computer-based software and programs are protected under the Copyright Act 1957, the Act fails to protect against software piracy on the internet.

Domain name and trademark infringement issues in cyberspace

A trademark is defined under Section 2(zb) of the Trademark Act, 1999 (hereinafter referred to as “TA 1999”) which states that it is a mark that can be represented in a graphical manner so that the goods and services integrated into that mark are easily distinguishable and differentiable in the eyes of the person who looks at that mark. The process and grounds for registration have been highlighted in great detail in Section 11 of the TA 1999 whereas the main function and importance associated with the trademark and its registration is to create assets, protect brand image, give a flavor of creativity towards the brand uniqueness and furthermore a trademark serves the purpose for customers, clients, partners, and operators to easily communicate, find and purchase the goods and services connected with that trademark.

A domain name is an ISP (Internet Service Protocol) that serves as an address of a particular website, in simpler words, a domain name consists of numbers like 425.236.856 similar to a mobile number where you can dial the number and get access to the website which the user wants to access. The simplicity and the advent of the letter-number tracking system on the internet have replaced the need to write and remember numbers with just simply writing words like “www.google.co.in”, “www.yahoo.com”, “www.gmail.com” etc. Hence such internet addresses are the domain names that make content on the internet easily accessible.

Trademark v/s domain name problem

In the words of Hon’ble Minister of Commerce and Industry, Shri Murasoli Maran, the Trademark Bill was introduced for the purpose of registration, protection, and prevention of fraud when it comes to the usage and goods and services. It has always been the policy of most trademark holders to buy domain names which are resembling their trademarks, for example, a law firm with a registered trademark of “nippon cool” will rather prefer a domain like “www.nipponcool.com” rather than a domain name with “www.soodcool.com”. The main problem is that the domain names are assigned by the ICANN (Internet Corporation for Assigned Names and Numbers) on a “stand in line” basis which leads to a situation where “predatory domain names” are assigned which are abusive towards the registered trademarks. Therefore, there are domain names that are formed where the domain name is registered containing a registered trademark, but the owner of that domain name does not have any legal right, interest, or lawful authority over the name of the trademark it is carrying.

Extension of the trademark v/s domain name problem to the cyberspace

Cybersquatting: Since domain names are assigned on a first come first serve basis by the ICANN, there are many instances where domain names are having the same name as that of a legitimate trademark as owned by another trademark holder causing prejudice to his brand image of the lawfully registered trademark herein this is called as cybersquatting. When trademarks and domain names share similarities then such domain name holders might sell out these domain names in the market to earn profits or jeopardize the brand and become abusive towards the brand image of a legitimate trademark holder. Domain names can help one establish an online identity but registering a wrong domain name can put a lawful trademark owner in an affray and he might be squandering about for his rights. Whenever a complaint about cybersquatting is to be filed then the complaint should contain three ingredients, firstly, the presence of malafide intention at the time the domain name was sought from the ICANN, secondly, lack of legal right of the domain name owner over the trademark being infringed and lastly, is the degree of similarity between the trademark and the domain name.
Reverse domain name hijacking: In such cases, it is the trademark owner who threatens the domain name holder with a lot of litigation and suits over the domain name owned by him, herein the trademark and the domain name do not have any kind of similarity. The domain name holder under the threat of costly litigation expenses and legal action might surrender his ownership over the domain name to the trademark holder who has falsely implicated the domain name holder in the litigation process. Such reverse cybersquatting is done mostly by wealthy companies, organizations and the victims are the small-time business and individuals who do not have humongous war chests to fight the wealthy corporations.
Meta tags: A meta tag is similar to a shoot tag on a shirt, T-shirt, or any accessory clothing item, whenever anybody looks at that tag, they get to know in small detail about the quality and the brand of that product. Similarly on the internet meta tags provide knowledge about the details, keywords, and other description about the website, these tags are used in Search Engine Optimization (“SEO”) because it describes in small detail thereto what content is there on the website to which the link is given therein. The original objective behind the creation of meta tags was to help search engines to place websites in an orderly manner concerning user queries received on the search engine. But now meta tags are used to make false rankings and abuse trademark and domain names connected with the trademarks of legitimate owners over the internet through false linking, titles, and descriptions.

Landmark judgments on trademark v/s domain name

Yahoo! Incorporated v. Akash Arora and Another

In the case of Yahoo! Incorporated v. Akash Arora and Another, Akash Arora had registered a website in the name of “www.YahoooIndia.com” and aggrieved by this action of Aakash Arora, Yahoo! filed a trademark infringement suit in the Delhi High Court, the Court ruled in Yahoo!’s favor citing that Aakash Arora had malafidely registered the domain name in his favor, to siphon off the profits from the abusive use of Yahoo!’s trademark. The court laid down that “mere registration of a domain name which is infringing the rights of a lawful trademark holder does not confer an absolute right. The defendant can be liable for trademark infringement because registration of domain name does not give him ownership over that domain name.”

Tata Sons Ltd. & Anr. v. Arno Palmen and Anr.

The plaintiff instituted a suit for permanent injunction in the Delhi HC for infringement of trademark because the defendant had registered a domain name by name of “www.tatainfotech.in” which infringes the plaintiff’s trademark, the High Court ruling in favor of the plaintiff laid down that the domain name was created in bad faith to fleece money from the plaintiff because the plaintiff is a well-known company which sells distinguished goods and services all over India. Hence, the registration of the domain name was canceled as per the orders of the High Court.

Examining the competency of Indian Courts to pass injunctions and directions on a global scale

The most common remedies for copyright, trademark, and other IP infringement are injunction, damages, border enforcement, and criminal remedies. But the commonest of all the remedies is the remedy of injunction. Since the internet is a borderless world where any competent court in India grants relief in the nature of injunction and restrains the infringing content, such orders of blocking can be limited to within the territory of India but cannot be enforced on a global scale. Since injunction, blocking and other reliefs will be India specific then common people may resort to using Virtual Private Networks (VPNs) to access infringing content hereby making court orders as a dead letter of the law with no teeth. Therefore, in the public interest to set aside this common misunderstanding on geo-specific blocking or cross-border enforcement the researcher lays down the following arguments for global injunctions and global blocking of content regardless of jurisdiction:

Jurisdiction

If any content on the internet which in infringing upon the copyrights of an Indian user, then the court has authority on a collective reading of Sections 2(1)- subclause (k), (l), (j), and (o) of the IT Act 2000 where the words “computer resource” “computer network which includes one or more computers” hereby it can be argued that a computer system can consist of a global system and the Indian court can direct removal or deletion on a global basis whereas “computer system” and “data” have no limitations placed onto them by the legislature moreover Section 2(2) and Section 75 of the IT Act 2000 uses the words “contravention committed outside India” and CA 1957 and Trademark Act 1999 does not limit the universal jurisdiction in any manner whatsoever.

Furthermore, in the case of YouTube v. Geeta Shroff, Hon’ble single judge of the Delhi High Court held that any defamatory content which is uploaded from the territory of India if same was downloaded outside India, then there is nothing that stops the High Court from exercising its authority and the content can very well be blocked and deleted through the path by which it was uploaded. It is hereby argued that the person who downloaded the content abroad can be directed to delete the infringing content because the principle of “recognition of foreign judgment” should be followed in that country where the downloader resides. In the case of Modi Entertainment Network and Another v. WSG Cricket PTE Limited, The Hon’ble Court held that injunctions can have an impact abroad provided that the rights in the subject matter of the dispute are in personam rights and hence the courts of India can exercise in personam jurisdiction.

Global injunction

After a prima facie case has been made out in the court for the grant of an injunction, an injunction on a global level is allowed because, under Section 79 of the IT Act, all the intermediaries are granted exemptions from liability where any kind of material or content is shared upon their platforms by third parties but the safe harbor immunity is subject to certain exemptions whereas it can be argued that an order passed by a competent court should have a full effect because it is unfair that a litigant travels to every country, initiates litigations and gets his copyright enforced in all countries across the globe. Chapter XII of the CA 1957 mentions injunctions but there is nothing there which limits the territoriality of an injunction. In the case of X v. Twitter Incorporated where the Supreme Court of new-south-wales held that global orders had to be passed against the defendant-twitter because companies owe a public duty where global orders seek to enforce public interest.

Therefore, it is concluded that Indian courts have the jurisdiction and authority under the current legal framework to issue global injunctions and orders in the public interest against infringing works to protect the personam copyrights of the internet users.

Conclusion

Currently, in India, the law is lacking in the aspect of punishing cybersquatting. At best a competent court of law can direct that the domain name be taken back, in India any domain name with the IN extension, has its registration is in the hands of National-Internet-Exchange-Of-India (NIXI) which is an independent body.

The IT Act 2000 lacks on the front of online piracy, and the copyright act and other IP related legislation have failed to clearly define the global injunction granting power of a court, hence a new domain name registration and jurisdiction related legislation should be passed for giving legal remedies against domain names, copyright infringement and other IP related concerns of performing abusive and bad faith activities on the internet.

The United States has already passed the Anticybersquatting Consumer Protection Act, 1999, similar legislation on the same lines but a few modifications should be passed in India.

References

Acts/ Regulations/ Rules referred

1. Anti-Cybersquatting Consumer Protection Act, 1999 (United States)

2. Copyright Act, 1957

3. Trademark Act, 1999

4. Information Technology Act, 2000

Books

1. Law Relating to Intellectual Property Rights, VK Ahuja.

Articles

1. Indu Sharma & M. Afshar, Privacy and Freedom Issues in Cyberspace with Reference to Cyber Law, 145 International Journal of Computer Applications 11-18 (2016.

2. Atul Jayabhaye, Cyber Law and IPR Issues: The Indian Perspective, Bharati Law Review 1, 3, 5, 7, and 10 (2016).

Websites referred

https://globalfreedomofexpression.columbia.edu/cases/x-v-twitter-inc/
https://www.mondaq.com/india/trademark/934040/reverse-domain-hijacking-care-full-who-you-pick
https://www.justia.com/intellectual-property/trademarks/cybersquatting/
Wipo.int. 2021. Trademarks. [online] Available at: <https://www.wipo.int/trademarks/en/ > [Accessed 8 November 2021].
Ebizfiling. 2021. Importance of Trademark registration in India | Ebizfiling. [online] Available at: <https://ebizfiling.com/blog/necessity-importance-of-trademark-registration-in-india/ > [Accessed 8 November 2021].
John Macklay 2009. About | HeinOnline. [online] Available at: <https://heinonline.org/HOL/LandingPage?handle=hein.journals/mttlr5&div=7&id=&page=> [Accessed 8 November 2021].
https://indiankanoon.org/doc/110441/
Ahirwar, P., 2019. Domain Name Disputes And Cybersquatting In India – Part II – Intellectual Property – India. [online] Mondaq.com. Available at: <https://www.mondaq.com/india/trademark/784296/domain-name-disputes-and-cybersquatting-in-india-part-ii > [Accessed 9 November 2021].
Justia. 2018. Cybersquatting Involving Trademarks and Service Marks. [online] Available at: <https://www.justia.com/intellectual-property/trademarks/cybersquatting/ > [Accessed 9 November 2021].
Banerjee, A. and Kala, S., 2015. Reverse Domain Hijacking- Care-Full Who You Pick! – Intellectual Property – India. [online] Mondaq.com. Available at: <https://www.mondaq.com/india/trademark/934040/reverse-domain-hijacking-care-full-who-you-pick > [Accessed 9 November 2021].

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All you need to know about administrative tribunals

By

Diva Rai

-

November 28, 2021

0

This article is written by Harmanjot Kaur Kang and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Table of Contents

Administrative tribunals

It is the name given to the ‘administrative exercise of the judicial functions. It is the term synonymously used with the administrative sections and decision making. It is the name given to various ways of deciding the dispute outside the ordinary courts. It is constitutional, though it is a negation of the principle of separation of powers. It is the participation or the involvement of the executive of the government (administrative authorities) in the judicial functions. Through the instrumentality of the administrative adjudication, administrative agencies can pass the authoritative and appealable decisions. This adjudicatory function is expired in a variety of ways. However, the most popular mode of adjudication is through tribunals.

Generally, a tribunal is any ‘person’ or ‘institution’. Authority to judge, adjudicate and determine claims or disputes whether or not have tribunals n it. Tribunals can be defined as ‘judgement seats’ or ‘court of justice’ or ‘board or committee’ formed to adjudicate on the claim of a particular kind. Tribunal is not originally a part of the constitution but they were introduced by the 42nd Amendment Act, 1976. Administrative tribunals are quasi-judicial authorities that are established under an Act of the Parliament or of State Regulations which is changed with the duty to discharge, adjudicatory functions. So, they are bodies other than courts that perform the adjudicatory functions.

How were tribunals designated under Indian Law?

By the 42nd Amendment Act, 1976 a new part XIV (14-A) was included in the constitution and this part is entitled to as ‘Tribunals’ and consists of two articles 323A and 323B. Article 323A empowers for the establishment of the Administrative Tribunal and following the Articles of the Indian Constitution, the Parliament has passed Administrative Tribunal Act, 1985.

This Act empowers the Central Government to establish one central ‘Administrative Tribunal’ (CAT) and the ‘State Administrative Tribunal’. Article 323B deals with the Tribunals of the other matters.

Types of the tribunals as per the Administrative Tribunal Act, 1985

Central Administrative Tribunal (CAT)

It has the jurisdiction to deal with the service matters about the employees of Central Government, any Union Territory, Local Government or any other Central Government, corporate-owned or controlled by the Central Government.

State Administrative Tribunals (SAT)

These tribunals can be established by the Central Government and the Parliament. Similarly, we see the State Legislature under Article 323 B for various matters like levy, assessment, collection and enforcement of any tax matters connected with the land reforms covered under Article 31 A.

Joint Administrative Tribunals (JAT)

This can be established on the request of two or more states collectively, which exercise administrative control over two or more states. For Instance, there are various tribunals such as:

Armed Force Tribunal (AFT)

Central Administrative Tribunal (CAT)

National Green Tribunal (NGT)

Income Tax Appellate Tribunal (ITAT)

Securities Appellate Tribunal (SAT)

Water Dispute Tribunal

Characteristics of administrative tribunals

They are of statutory origin and so must be created by a statute or by the Parliament or State Legislation. They are quasi-judicial in nature. This means they have features of a court but not all. The administrative Tribunal is bound to act judicially and follow the principles of Natural Justice. We see various procedural matters, i.e., administrative tribunals have the powers related to the summoning of the witness, administering the oath, to compel production of the documents.

It is not bound to the strict rules of the evidence law and the procedure prescribed by the civil procedure code. They are independent and are not subject to any administrative interference in the discharge of their judicial functions and quasi-judicial functions. The writ of certiorari and prohibition are available against the decisions of the administrative tribunals. It has some toppings of the court and is required to act openly, fairly and impartially.

Necessity and reasons for the growth of administrative tribunals

The main purpose of the introduction of this Act was:

To relieve the congestion in the courts
To lower the burden of the courts
To provide for speedy disposal of the dispute relating to the service matters
To relieve congestion in courts
To lower the burden of cases in the courts
To provide for speedy disposal of the dispute relating to service mandate

Necessity

Tribunals are less expensive and procedures are not complex and formalistic as in courts.
Tribunals are cheaper and are easily accessible to the affected person. For instance, sales tax, tribunals, land appellate tribunals and labour tribunals etc.
Tribunals decide all the questions subjectively on a departmental policy basis. Courts decide objectively.
They have experts in their panel who can dispose of the technical problems effectively or they possess technical knowledge in a particular field like labour, revenue, excise, wages etc.
Tribunals Act rapidly with the discretionary powers basing their decisions on the departmental policy and other factors whereas the ordinary courts can follow the procedure and the Evidence Act and hence take much time.

Application of the Act

Section 2 of the Administrative Tribunals Act, 1985, Act applies to all central government employees.

Exceptions

The members of the naval, military and air force person or any other forces of the Union.
Any officer or servant of Supreme Court or High Courts.
Any person appointed to as the secretary staff of either Houses of the Parliament.

Composition of tribunals and the bench

Section 4 defines the tribunal to have the following organs:

Chairman: There would be a chairman who would be administrating the whole matters.

Vice-Chairman: This would be the one who would be assisting the chairman.

Judicial Minister: This would be having the qualifications similar to the judicial officer.

Technical Expert: This would be looking into the areas related to the respective technical area.

Administrative Members: This would help in the governance system.

Every bench must include at least one judicial and administrative member.

Term of office

Section 8 talks about such provisions. The person can work for a period of five years. However, we see that the Chairman would retire at the age of 65 years. Similarly, other members would retire at the age of 62 years of age.

Advantages of administrative tribunals

They offer flexibility when compared to ordinary courts.
They are cheaper and offer speedy justice.
The procedure followed by the Tribunals is the simplest and is easy to understand.
They offer relief to the ordinary courts that are already over-burdened courts with various suits.
They have their experts in the panel who specialise in a particular area like labour law, wages etc.
They provide sufficient administrative acts and fair justice to all.

Limitations of administrative tribunals

They consist of members and heads that may not possess any background in law.
As they do not rely on the uniform precedence and hence may lead to arbitrary and inconsistent decisions.

Disadvantages of administrative tribunals

They may go against the spirit of the Rule of Law. The Rule of Law ensures that there is arbitrary power. It is not exercised by the institutions or the individuals.
It is the principle that everybody is subject to and accountable to laws, which are in favour of them.
They don’t have a uniform code of procedure whereas ordinary courts do not have a uniform code.
Most judges do not enjoy the same independence as enjoyed by the judges and the executives of the courts.
The administrative tribunals are handled by the individuals like the administrators and technical heads who may have no experience or training in judicial proceedings.
They hold summary trials and do not follow any procedure, so it is not possible to predict the course of future decisions.

Challenges faced by administrative tribunals

The functions of the administrative tribunals are not autonomous per se, as they are dependent on the executive for the aspect of funding and appointment.
The administrative tribunals lack the adequate infrastructure to function efficiently.
The staff requirements of the tribunals are still unknown.
In the Chandra Kumar case, the Supreme Court held that the appeal of the tribunal come under the jurisdiction of the court. This defeats the whole purpose of reducing the burden of the judiciary.
The tribunals are chaired by the retired judges who are appointed by the government. So, due to this reason, the present judge may show favouritism towards certain matters so that they may be appointed as a part of the tribunal during the post-retirement.

Differences between courts and tribunals

The courts are a part of the traditional judicial system. However, we see that tribunals are an agency created by a statute and conferred with judicial powers.
It is vested with the general jurisdiction over all the matters. However, the tribunals deal with the service matters and are vested with limited jurisdiction to decide a particular issue.
Courts are bound by the rules of the Evidence Act and Code of Civil Procedure. However, tribunals are not bound by the rules of the Evidence Act and the Code of Civil Procedure unless such an organisation is important on the tribunals by the statute which created it.
The Courts have a presiding officer of the court of law who is trained in law or is an expert in the field of law. However, in the case of a tribunal, the presiding officer is a member of the tribunal and may not be trained in the field of law. He may be an expert in the field of administrative matters.
The courts look into the decisions of the courts in an objective nature which is primarily based on the evidence and the material produced before the court. The tribunals’ decision may be subjective rather than objective which may be decided to take into account the departmental policy.
The courts are bound by the precedents, the principle of Res Judicata and the Natural Justice. Tribunals are not bound to follow the precedents of the judicial decisions but the principle of Natural Justice must be followed.
Courts can decide on the validity of the legislation. On the other hand, the tribunals cannot decide the validity of the legislation.
The courts do not follow the investigatory or the inquisitory function. It rather decides the case based on the facts. On the other hand, tribunals perform the investigatory function as well as the quasi-judicial function.
The courts are more formal in nature. Therefore, they are slow in the execution of their rigid procedure. On the other hand, the tribunals are less formal. Additionally, they are less expensive and are faster to resolve disputes.
Courts judges are impartial. They act as arbitrators and are not the party to the dispute. On the other hand, the tribunal can be a party to the dispute.
The decision of the court will be called a judgement, decree and conviction or acquittal, depending on the facts and circumstances of the case. On the other hand, the decision of a tribunal will be called ‘award’.
The judges of a court would act independently. They act as the independent executive of their decision. However, in the case of tribunals, the terms and conditions of the service of the administrative tribunal would be in the hands of the members of the tribunal.

However, a major drawback lies here that since there is no formal procedure prescribed here there can be arbitrariness. However, on the other side of the coin, we see that there is the good side which shows that even an application with a simple format can be treated as a petition.

Since there is a system of ‘welfare state’ in India and the people are concerned about getting their rights to be duly acknowledged, we see that the idea of administrative tribunals are good as the courts are very overburdened these days. We can be thankful to tribunals for their technical expertise in the field and speedy delivery of justice which overweighs its cons.

Conclusion

From the above discussion, we see that though administrative law is still in its infancy stage. However, with time, we see that there are various instances where there are instances of how the evolving decisions have helped in the formation of a strong judicial system in our country. Also, we see specialised systems like that of the ‘National Green Tribunal’ are there. Thus, we see that there is a liberal overview of the system of governance and is more people-centric in nature.

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Supreme Court guidelines on withdrawal of cases against MPs and MLAs by states

By

Oishika Banerji

-

November 28, 2021

0

This article is written by Vanya Verma from O.P. Jindal Global University. This article covers guidelines issued by the Supreme Court on the withdrawal of charges against the MPs and MLAs.

Table of Contents

Introduction

The directions were issued while hearing a plea filed by Advocate Ashwini Upadhyaya, who cited the staggering pendency of criminal cases against MPs and MLAs and sought their expeditious disposal by setting up special courts.

Amicus curiae Senior Advocate Vijay Hansaria, assisted by Advocate Sneha Kalita, pleaded with the Bench that no prosecution under Section 321, Criminal Procedure Code (CrPC), against a sitting or former member of Parliament or a Member of a Legislative Assembly/Council should be allowed to be withdrawn without the permission of the High Court.

Observations made by the Supreme Court

The Supreme Court ruled on 10 August 2021 that no criminal prosecution against MPs or MLAs can be withdrawn without the agreement of the High Court of the State, a move that limits the state government’s capabilities at a time when the top court has expressed great concern over the criminalization of politics.

The direction must be issued urgently, according to a Bench led by Chief Justice of India (CJI) NV Ramana, in light of a report by the amicus curiae (lawyer to assist the court) describing multiple instances where state administrations sought to withdraw charges against current and past legislators.

“We deem it appropriate to direct that no prosecution against a sitting or former MP or MLA be withdrawn without the permission of the High Court,” the Bench, which also included Justice Vineet Saran and Justice Surya Kant, said in a virtual clampdown on state government’s abuse of power under Section 321 of the CrPC, which allows a prosecutor to seek withdrawal of the criminal cases against the accused.

On the same day, another Bench, led by Justice Rohinton F Nariman and Justice BR Gavai, warned that the country is “losing patience” in waiting for lawmakers to “cleanse politics” by enacting stronger legislation to keep individuals with criminal records out.

In a separate judgment, this Bench exhorted lawmakers to “wake up from their deep slumber” to weed out the malignancy of criminalization in politics, imposing a monetary penalty on all major political parties for flouting its directives on disclosure of information about their candidate’s criminal backgrounds during the 2020 Bihar assembly elections.

Meanwhile, the CJI-led Bench cited an earlier order from September 16, 2020, in which the high courts were asked to register suo motu (on their motion) writ petitions to monitor trials against MPs and MLAs, and asked them to look into any withdrawal cases that had been filed since September 16, 2020, whether they were still pending or had been resolved.

The Bench emphasized that the power under section 321, CrPC, is a responsibility that must be used in the public interest and cannot be used for extraneous and political considerations, referring to a July 28 judgment by the Apex court in which the Kerala government’s move to withdraw cases against some of the state’s sitting and former MLAs was snubbed. This power must be exercised with the utmost good faith to promote the greater public interest.”

The Court also ordered that all trial judges handling criminal proceedings against MPs and MLAs in special courts remain in their positions until further orders are issued. For that purpose, the registrar generals of all 25 High Courts were required to submit information on the judges who hear such matters in special courts, as well as the status of the cases, decisions handed down, and other information.

Legal provision for withdrawal of a case

The Public Prosecutor in charge of a case has the authority under the Code of Criminal Procedure (CrPC) of 1973 to withdraw the case with the approval of the court. The Supreme Court held in State of Bihar v. Ram Naresh Pandey (1957) that before granting consent to withdraw a case, the Court must be satisfied that the Public Prosecutor’s executive function is being properly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes.

In Sheo Nandan Paswan v. State of Bihar (1986), the Supreme Court’s Constitutional Bench declared that applications to withdraw cases should be filed in good faith and not to “thwart or stifle the process of law.” Furthermore, in State of Punjab v. Union of India (1986), the Supreme Court said that the administration of justice should be the criterion for determining whether or not suits should be withdrawn. As a result, the prosecution can be withdrawn for a variety of reasons, including a lack of evidence, the accused’s socioeconomic status, and others.

Given the broad scope of this power, the Supreme Court has warned against the withdrawal of cases for illegitimate motives such as political favours or party pressure on several occasions. The Supreme Court declared in SK Shukla v. State of Uttar Pradesh (2005) that the public prosecutor “cannot work as a post box or act on the orders of the state government.” As officers of the court, the Public Prosecutors should operate objectively, according to the Court. However, it appears that public prosecutors operate at the behest of state governments regularly, rendering the provision for case withdrawal subject to abuse.

Role of the state government in withdrawal of cases

As the State Government is responsible for maintaining law and order in the state, it can direct the Public Prosecutor to withdraw cases in the public interest. In essence, the Public Prosecutor’s orders are simply advisory and not binding. The Public Prosecutor is expected to think independently about the evidence and make a decision.

However, as things stand now, it is difficult to assure that the Public Prosecutor makes independent decisions without being influenced by the state government’s wishes. The state government’s direct administrative authority over the appointment and firing of Public Prosecutors makes it practically impossible for them to deviate from the state government’s directives. As a result, the state government’s role as the key decision-maker for case withdrawal is inflated.

A 2005 Amendment to the Criminal Procedure Code proposed that states create an independent Directorate of Prosecutors to address this issue. In addition, the Law Commission of India’s report on the appointment of Public Prosecutors (2006) advised that Public Prosecutors be given suitable tenure and that safeguards be put in place to prevent arbitrary appointments. Despite these recommendations, public prosecutors in numerous states remain subordinate to the executive branch.

Withdrawal of cases

Hansaria cited cases where orders under Section 321 CrPC were made in Karnataka, Uttar Pradesh, Uttarakhand, and Maharashtra. Few instances of withdrawal of cases are as follows:

A government decision in Karnataka aimed to dismiss 61 criminal cases, many of which were launched against the state’s sitting MLAs. The Kerala Government, led by the CPM, decided on February 24 to remove criminal proceedings related to Sabarimala and anti-CAA protests, except for those of a serious character.
The West Bengal administration said on February 20 that it had started the process of withdrawing 70 cases linked to the Gorkhaland movement and associated agitations that occurred between 2007 and 2017. BJP leader Dilip Ghosh vowed to drop all fake cases against political activists if his party was elected to power in West Bengal in October 2020, to generate support across party lines.
Last year, the Uttar Pradesh Government decided to drop charges against Sadhvi Prachi, a political leader, and three serving MLAs – Sangeet Som, Suresh Rana, and Kapil Dev – for making incendiary statements during the 2013 Muzaffarnagar riots. According to news reports, the withdrawal of prosecution applied to 76 criminal charges stemming from the disturbances. Akhilesh Yadav pledged to drop charges against anti-CAA activists in December 2020 if his party wins the Uttar Pradesh elections in 2022.
According to another report from Maharashtra, the state administration decided in December of last year to dismiss political complaints filed against activists before December 31, 2019.
In June, the Andhra Pradesh High Court took suo motu cognizance of 11 distinct rulings issued by various magistrates authorising the prosecution of Chief Minister YS Jaganmohan Reddy in criminal cases still pending. The amicus, on the other hand, did not mention this case in his report.

However, in recent months the state governments of Uttar Pradesh and Karnataka have taken steps to remove cases involving riots and communal violence against political officials, including BJP MPs and MLAs.

According to the non-profit Association for Democratic Reforms’ (ADR) study of candidate affidavits, the number of MPs with disclosed criminal charges against them has increased over the last decade. In 2009, it was 30%, and by 2019, it had risen to 43%.

Criminal prosecution was filed against 39 percent of the Bharatiya Janata Party’s victorious candidates in 2019, compared to 57 percent for Congress, 43 percent for the Dravida Munnetra Kazhagam, and 41 percent for the Trinamool Congress.

Hansaria cited a July 28 ruling that parliamentarians are not immune from criminal prosecution to smooth the way for the prosecution of several of Kerala’s current and past MLAs who tossed furniture and destroyed computers and microphones during a House hearing in 2015.

During the hearing, the court also chastised the Central Bureau of Investigation (CBI) for failing to provide details of cases it is investigating involving MPs and MLAs. Since September 2020, when the CBI was repeatedly ordered to give a status report but failed to do so, the Bench has read out its directions.

“We’re at a loss for words right now. We’ve already said everything there is to say. We can only presume certain things now. When we questioned the Indian government about their seriousness, we were assured that the government is committed to completing the trials against MPs and MLAs, but that you have done nothing.” It told solicitor general Tushar Mehta, who represented the CBI.

Details of the petition

The current petition was submitted in the Supreme Court in 2016, seeking that convicted individuals be prohibited from all levels of government, including the legislature, executive branch, and judiciary.

The plea requested that the government provide adequate infrastructure to establish Special Courts to decide criminal cases involving People Representatives, Public Servants, and Members of the Judiciary within one year, and to debar convicted persons uniformly from the Legislature, Executive, and Judiciary.

The petition also requests that the Election Commission, Law Commission, and National Commission to Review the Working of the Constitution implement the “Important Electoral Reforms” proposed by the Election Commission, Law Commission, and National Commission to Review the Working of the Constitution; and that the petitioner be allowed to bear the cost of the petition.

Mr Ashwini Kumar Upadhyay filed the case, which requested that an order be made instructing the Centre to take all necessary steps to prevent anyone accused of criminal offences from winning elections, joining political parties, or becoming office-bearers of any political party. It also asked guidance on how to build up Special Courts with appropriate infrastructure to resolve criminal matters involving members of the Legislature, Executive, and Judiciary within a year.

Ruling of the Hon’ble Supreme Court

The Supreme Court ruled on Monday that no prosecutions against sitting former MPs and MLAs will be dropped without the agreement of the state’s High Court. The Supreme Court further ordered that judges considering criminal cases against MPs/MLAs in Special Courts remain in their current positions until the Supreme Court issues further orders. This directive will be subject to the judges presiding over cases against parliamentarians retiring or dying.

The order was delivered by a Bench consisting of Chief Justice of India NV Ramana, Justice Vineet Saran, and Justice Surya Kant while hearing a petition regarding the pendency of criminal charges against MPs and MLAs and the expedient disposition of the cases by the establishment of Special Courts. “The first concern is a potential abuse of power under Section 321 of the Code of Criminal Procedure about case withdrawal. We believe it is reasonable to order that no prosecutions of MPs or MLAs be discontinued without the permission of the High Court in the respective suo motu proceedings filed in response to our ruling “, the court ruled.

The High Courts are asked to review any withdrawals, whether pending or completed after September 16, 2020, in light of the Supreme Court’s Guidelines on withdrawals in the recent Kerala assembly riot case, State of Kerala vs K Ajith and others, (2021)

The Bench has given the Registrar Generals of High Courts the authority to file applications seeking a relaxation of the restriction prohibiting judges from being transferred if the need arises.

The Bench issued the direction in response to amicus curiae Senior Advocate Vijay Hansaria’s submission that no prosecution under section 321 Cr.P.C. against a sitting or former Member of Parliament or Member of Legislative Assembly/ Council should be allowed to be withdrawn without the permission of the High Court.

The Amicus Curiae had presented a report to the Court, written with the assistance of Advocate Sneha Kalita, advising the Court about the intended withdrawal of cases in the following instances:

The state of Uttar Pradesh is attempting to drop charges against MLAs Sangeet Som, Suresh Rana, Kapil Dev, and Sadhvi Prachi in the Muzaffarnagar riots.
The State of Karnataka issued instructions for the withdrawal of 61 lawsuits, many of which are against elected members of the State Legislature, in a Government Order dated August 31, 2020.
According to reports, the state of Maharashtra is removing political cases filed against activists before December 31, 2019.

The case was scheduled for today after Amicus Curiae Advocate Vijay Hansaria requested an urgent hearing before a Bench led by CJI Ramana on Friday, stating that specific directives are required in the case.

High courts to examine withdrawal of cases

“The High Courts are instructed to review the withdrawal of proceedings against MP/MLAs since September 16, 2020, about the Supreme Court verdict in State of Kerala versus K Ajith,” the Bench noted in its judgment.

A withdrawal application filed by the prosecuting agency is usually decided by the trial court. However, due to the Supreme Court’s order, magistrates are no longer allowed to decide on the withdrawal of prosecution.

In the K. Ajith case, the Supreme Court of India dismissed the Kerala government’s request to allow it to withdraw criminal cases against members of the ruling Left Democratic Front (LDF) while establishing rules for courts to use in deciding withdrawal applications. The Supreme Court determined that cases should only be withdrawn if it is in the public interest.

The case’s leaders were accused of destroying public property by resorting to violence during a 2015 assembly session.

The SC’s order on case withdrawal came after amicus curiae Hansaria and Kalita noted instances of planned case withdrawals against members of the ruling party in their most recent report.

According to the source, the Karnataka government gave instructions to withdraw 61 lawsuits against elected members of the state legislature in August 2020. However, due to a high court judgment in a PIL that directed no action be done based on the notification, no further action was taken.

Similarly, the Uttarakhand government applied to withdraw charges against sitting MLA Rajkumar Thukral, who was charged with murder in 2012. The case is still in the hands of the trial court.

According to Hansaria, the Uttar Pradesh Government also plans to withdraw charges against several of its MLAs who were charged with making inflammatory statements about a community during the Muzaffarnagar riots, which resulted in the deaths of 65 people and the displacement of 40,000 people.

No transfers of trial court judges hearing such cases

The Supreme Court also stated that the issue of whether or not to install video-conference facilities in trial courts was still under consideration. The Bench had urged the Centre and states to allocate funds for the facility in its November order.

The Bench told Mehta that the Centre has failed to “even answer” on this issue after being notified there was no action on this front. It then ordered the federal government to produce an affidavit in this respect before the next hearing date, which is set for August 25.

The Court also ordered that the registrar generals of all high courts produce a list of trial court judges who are considering criminal cases against elected officials and cases that are pending and cases that have been decided by them.

The Apex Court agreed with Hansaria that the trial judge hearing these matters should not be transferred for at least two years, and ruled that such judges should remain in their positions until further instructions – unless they are scheduled to retire. The High Court will examine the specific cases in that case, according to the Court.

Conclusion

Though the ability to withdraw cases in the public interest is critical for the justice system, it should not be exclusively in the hands of the ruling political party. While State Governments may direct public prosecutors to pursue charges that are in the public interest, public prosecutors should be able to withdraw cases as needed. They should be empowered and well trained to prevent the state government from abusing the criminal justice system.

Furthermore, any communication from the state government to public prosecutors on the withdrawal of cases should be supported by reason. It should explain how the dismissal of cases will help the administration of justice, and it should be made public. Such restrictions will serve to protect public prosecutors from outside influence while also increasing public scrutiny of case withdrawals.

References

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Environmental taxes : how can India benefit from it

By

Sneha Mahawar

-

November 28, 2021

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This article is written by Damini M pursuing BBA LLB (Hons.) at the Presidency Univesity and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Introduction

The indirect tax device in India has gone through massive reforms for more than many years. It can result in appropriate environmental selections by elevating the relative fees of polluting inputs and outputs and thereby correcting the negative externalities of a polluting practice. To the volume that merchandising of ‘surroundings’ is a public excellent, like every public item, financing of this public correct should additionally be from the overall pool of taxes consisting of the environmental taxes. Environmental challenges are growing the strain on governments to locate ways to lessen environmental damage whilst minimizing harm to financial increase. When tax is imposed on a polluting or environmentally dangerous substance or interest, it introduces an economic value that the polluter will consider while making the decision on whether or no longer to hold on to the interest or, how its miles are carried out or its quantity.

What is environmental tax

An environmental tax also called Eco Tax is an excise duty on goods that purpose environmental pollution. Charging taxes on emissions that reason pollutants will decrease environmental impairment in a cost-powerful manner. Thus, encouraging behavioural modifications in households and companies that want to lower their pollutants. According to the statistical framework developed at the same time in 1997 by means of Eurostat, the European Commission, the Organisation for Economic Cooperation and Development (OECD) and the International Energy Agency (IEA), environmental taxes are “those whose tax base includes a physical unit (or comparable) of a few fabric that has a poor, validated and unique impact at the environment.

Need for environmental tax

Need of Environmental Taxes are such as Increasing population boom inside the past few decades has greatly impacted the ecology. The substantial use of scarce natural assets and growing pollution stages has caused huge greenhouse gases emissions (GHG). In addition, climatic adjustments, unfolding of continual illnesses, growing sea tiers, and financial results are some of the foremost issues of ecological misuse. This is where Environment Tax or Green Tax or Eco Tax comes in. It discourages human beings from destructive the surroundings by way of making them pay for herbal assets.

What is India’s green tax on vehicles

An inexperienced tax imposition in India is a current development, and specific cars are being monitored for emissions, particularly at country border regions. An ECC (Environmental reimbursement price) is imposed on distinct vehicles, each personal and industrial, depending upon their size. The inexperienced tax varies from nation to state. For instance, in Maharashtra, private automobiles which might be greater than 15 years vintage or more and commercial motors elderly 8 years or greater are prone to pay the tax. Personal automobiles can be charged a tax at the time of renewal of Registration Certification after 15 years.

The primary need for environmental taxes is to protect the surroundings. However, there are a few extra reasons why environmental taxes are the need of the hour:

Promote strength saving and the usage of renewable assets.
Internalize the poor externalities.
Motivate companies to innovate in sustainability.
Discourage anti-ecological conduct.
Generate sales for governments, permitting different taxes to be decreased or environmental tasks to be accomplished.

Goals of Environmental Taxes

The environmental tax goals at making sure that polluters are duly punished for the sports that dispose of the environment by using charging them a penalty for the harm caused to the environment and others.
Charging direct taxes to perpetrators on emissions is a cheap manner to provide them with an incentive to lower their pollution to the quantity wherein in addition discount could probably end up greater costly than paying the tax itself.

Types of environmental taxes

Carbon tax

It is a form of Pollution Tax. It levies a price at the manufacturing, distribution, or use of fossil fuels based on how a great deal carbon their combustion emits. It is a cost-powerful device to reduce greenhouse gas emissions in the surroundings.

Green tax

Also known as ECC (Environmental Compensation Charge) is levied on Vehicles (Cars and Two-wheelers) in India. It might be imposed on pollution depending upon the automobile’s length. It turned into introduced in October 2015, in Delhi. The authorities of Delhi is likewise considering the extension of Section 194 of the Motor Vehicles Act which does no longer allows the access of commercial vehicles to Delhi at precise times.

Other taxes

Duties on imported goods containing enormous non-ecological power enter (to a stage necessary to deal with fairly local manufacturers) Severance taxes at the extraction of mineral, energy, and forestry products. License prices for camping, hiking, fishing, and looking and associated equipment. Specific taxes on technologies and products are associated with extensive poor externalities. Waste disposal taxes and refundable charges.Steering taxes on effluents, pollution and other dangerous wastes. Site fee taxes at the unimproved cost of land.

Laws governing environmental tax

Status of Environmental Tax in India

Under the Forest Conservation Act, 1980, any entity that diverts woodland land for non-wooded area functions is required to offer financial reimbursement for the motive of afforestation in non-woodland or degraded land.

In 2002, the Supreme Court had directed that a Compensatory Afforestation Fund (CAF) ought to be created to manipulate the funds generated.

Similarly, India’s Clean Environment Cess or coal cess acts as a carbon tax.

The coal cess is levied on coal, lignite and peat on the price of ₹ 400 in keeping with tonne, and the price range raised are managed by means of the National Clean Environment Fund.

The green tax scenario in India

In India, the concept of an Environmental Tax has undergone many stages. Although the concept may have been well received, the impact needs to be more powerful and popularised among the masses. People need to be made aware of their ability to protect the environment even at the grassroots levels for e.g. reducing the open burning of non-biodegradable wastes. Hence, educating the masses about Environmental (Green) Taxes will help them better understand the consequences of their actions and help them contribute towards sustainable development via the payment of Environmental Taxes. During the proposal of the Thirteenth Finance Commission in India, it was strongly suggested for levying a non-negotiable excise on all environmentally polluting goods, which is indeed a challenging process and attracts huge research work for evaluating it. However, on the imposing of a Green Tax on natural gases, a final decision was not taken. Further, the Commission put forth the proposal of three specific grants for the promotion and conservation of the environment with the aim of increasing the forest cover, better management of water resources, and promoting connectivity of renewable energy to the national energy grid. It does paint a reassuring picture for the future and that India is ready to join the ranks of “environmentally sound” nations. Even though it can be argued that the word ‘pollution’ does not find any space in the Indian constitution, it can be related to ‘Public health’ which comes in the State list and of the VIIth schedule, and to “Right to Clean Environment” which is an intrinsic part of Indian constitution under Article 21 of the Indian Constitution. Pollution control laws are passed in the national interest under Article 249 of the Indian Constitution. The effective tax rates for selected polluting goods and industries were also examined in order to see their impact on the continuous increase and escalation effect over Indirect Taxes. Apart from the above measures, it is seen that the Tax Reforms Committee of 1992 prescribed that higher rates of taxes on some raw materials could be levied to induce economy in the use of those materials in production and consumption, in order to conserve and protect the environment. Further, it was also recommended that excise taxes could be a useful instrument in dealing with externalities in the form of social costs. However, this recommendation could not attract much attention in any subsequent enactment. Subsequently, the taxation regime in this regard has been limited to certain concessions and incentives provided by the State Government occasionally for using more environmentally friendly and pollution control equipment and in the adoption of a well-established policy for the encouragement of Renewable Energy Technologies.

Benefits of environmental taxes

The implementation of an environmental tax in India could have the subsequent 3 huge benefits.

Benefits associated with the environment

Environmental taxes assist in internalising the terrible environmental externalities inside the usual framework and therefore incentivize greener merchandise and strategies and disincentivize polluting methods and merchandise. This will lessen environmental pollution, inspire environmental upkeep, and adoption of an environmentally sustainable technique.

Benefit in reducing poverty

The augmented revenue from environment tax can finance research and the improvement of the latest technologies, as a result, encouraging the upward push of new sunrise sectors and new jobs. The augmented revenue may even help finance social sectors as a way to a useful resource inside the improvement manner and assist reduce poverty.

Associated fiscal benefits

Tax revenues may be generated via environmental taxes by way of designing them as revenue augmenting. Read more on Tax and non-tax sales at the related web page. The extra revenue generated can be used for the supply of environmental public items or directed toward the general sales pool for use in important social sectors like health. This will assist developing nations like India, limited with the aid of constrained economic areas to deal with important environmental fitness troubles.

How can India benefit from it

The financial impact of the pandemic

The 2nd wave of the pandemic has brought about lockdowns in several states and brought the monetary hobby to a standstill. This will result in a lower-than-predicted monetary growth and a subsequent decline in tax revenue. This will lead to a bigger than projected financial deficit within the contemporary yr. The economic deficit for FY 2020-21 (revised estimates) is projected to be 9.5% of the GDP for 2021-22,

The endured cognizance on the economic field is sure to impact public expenditure that’s vital for economic revival and additionally effect expenditure into the ailing fitness sector that’s vital in the fight in opposition to the pandemic.

Consequences of low public expenditure within the health zone

The low public expenditure into the health zone affects the loss of adequate and fine public fitness care facilities, accordingly leading to the upward push of private fitness care centres. Such a situation perpetually ends in an excessive out-of-pocket expenditure for fitness wishes.

The World Health Organization (WHO) statistics note that 17.33% of the populace in India made out-of-pocket payments on fitness exceeding 10% of the full household expenditure or income in 2011.
This is higher than the global average of 12.67% and additionally the common for the Southeast Asian area which stands at 16%.
Similarly, 3.Nine% of the populace in India made extra than 25% of out-of-pocket bills on health.
The Economic Survey of India 2019-20 notes that a boom in public spending from the modern stage of 1% to five-3% of GDP, as envisaged in the National Health Policy of 2017, can lower out-of-pocket expenditure from 65% to 30%.
The excessive out-of-pocket expenditure for fitness pushes many into poverty. Also, since a lower share of disposable income is to be had for different essentials like meals and training, this would also have a protracted-term effect at the dietary protection and improvement of children of such families.

Alternative supply of financing and environment

Given the important want for better public expenditure inside the fitness area and the monetary strain imposed by the pandemic, it becomes critical to look for alternate resources of fitness financing in India.
The COVID-19 pandemic has also forced a reconsider on weather alternate and the want for environmental upkeep.
Environmental tax/Eco-tax is one of the alternative resources of financing to enhance the health area in India.

Understanding eco tax / Environment Tax reforms

Environmental tax reforms might specially contain the subsequent three sports:

Eliminating present subsidies and taxes that have a damaging impact at the surroundings.
Restructuring current taxes in an environmentally supportive manner.
Initiating new environmental taxes.

For instance, within the power zone, the subsequent reforms may qualify as environmental financial reforms:

Correcting the fee differential between diesel and petrol.
Differential taxation on vehicles within the delivery region based on gasoline performance and GPS-based congestion charges.
Taxes on thermal-based powers and tax rebates for renewable energy manufacturers.
Tax on excessive carbon footprint industries.

Different kinds of environmental regulation done in India

Environmental Regulation may be of the subsequent sorts:

Command and manage technique wherein the authorities place strict rules on pollutant emissions and there are fines on non-compliance.
The economic planning/urban making plans approach includes inculcating sustainable management practices in policymaking.
Environmental tax (eco-tax)/subsidies technique involves both taxing the polluters to disincentivize using excessive carbon footprint methods or products and also providing subsidies to encourage the adoption of inexperienced technology.
Cap and change method involves the government setting limits for emissions and the status quo of carbon trade markets.

India currently focuses majorly at the command-and-manage method in tackling pollution.

Conclusion

An environmental tax also called Eco Tax is an excise duty on goods that purpose environmental pollution. Charging taxes on emissions that reason pollutants will decrease environmental impairment in a cost-powerful manner. Thus, encouraging behavioral modifications in households and companies that want to lower their pollutants. The indirect tax device in India has gone through massive reforms for more than many years. It can result in appropriate environmental selections by elevating the relative fees of polluting inputs and outputs and thereby correcting the negative externalities of a polluting practice. To the volume that merchandising of ‘surroundings’ is a public excellent, like every public item, financing of this public correct should additionally be from the overall pool of taxes consisting of the environmental taxes. Therefore ways in which India can benefit from it are by Financial impact of the pandemic, secondly by Understanding Eco tax, and thirdly by Different kinds of Environmental Regulation done in India such as penalities on polluters and much more. Therefore Environmental taxes help internalise the poor environmental externalities inside the overall framework and as a consequence incentivize greener merchandise and methods and disincentivize polluting strategies and products.

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