Authorities and legislation related to protection of designs in India

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November 24, 2021

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This article is written by Divyanshi Singh, of Symbiosis Law School, Noida. This article discusses the authorities and legislation related to the protection of designs in India.

Table of Contents

Introduction

Industrial design protection in India is controlled by a dynamic regulatory framework that is associated with technological advances and accompanying international developments. The Designs Act, 2000 which repealed and replaced the Designs Act, 1911 establishes the statutory basis for the protection of designs and has been in effect since May 11, 2001. The Act not only provides for minimum standards of protection for industrial designs (as envisaged in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)) but also adheres to international trends in design administration.

Legislations on design

What are designs

Design rights safeguard unique elements of a product, such as shapes, configuration, colour combination, surface ornamentation, line composition, or patterns, whether in two dimensions, three dimensions, or both dimensions, that give an aesthetic element rather than a practical attribute. The Designs Act, 2000 (hence referred to as the ‘Act’) and its accompanying Designs Rules, 2001 govern the submission, prosecution, and registration of an industrial design in India.

The Act was created to provide the bare minimum of design protection under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) while adhering to international protection standards. According to the Act, a ‘design’ is any feature of shape, configuration, pattern, ornament, or composition of lines or colours applied to any article, whether in two dimensional or three dimensional or both forms, by any industrial process or means, whether manual, mechanical, or chemical, separate or combined, that appeal to and are judged solely by the eye in the finished article.

Any person (natural or legal) claiming to be the owner of a new or original design may apply for registration of such design.

Design Act, 2000

Previously, this Act was governed by the Design Act of 1911. The Design Act, 2000 was enacted in order to bring the Design Act in line with international legislation. As a result, the Design Act of 2000 currently governs design laws. It is an Act to consolidate and reform the law governing design protection. It was published in the Indian Gazette and went into effect on May 12, 2000. This Act is a complete code in and of itself, as well as a formal act. It covers the entire country of India.

The salient features of the Design Act, 2020

India is a signatory to the Paris Convention of the World Trade Organization. It has ratified the Patent Cooperation Treaty, which permits all parties to claim priority rights.
The Locarno categorization, which is based only on the subject matter of design, was introduced by the Act of 2000. Previously, the classification was formed on the basis of the material utilised to manufacture that material.
With the addition of “Absolute Novelty,” it is now possible to judge the novelty based on the prior publication of any article. This is also true in other countries.
According to the new law, a design that was not present in the prior enactment can be restored. A design’s registration can now be reinstated.
Where jurisdiction exists, the Act empowers district courts to transfer cases to the high courts. It is only feasible if a person is contesting the legality of a registration.
The new Act also mentions laws about the delegation of controller functions to other controllers and the duty of the examiner.
In the event of an infraction, the Act increases the severity of the penalty.
A registered design’s two-year confidentiality is likewise withdrawn.
Provisions for avoiding certain restrictive requirements are also included in order to govern anti-competitive practices in contractual licenses.
When a license is brought into the sphere of public records, especially when done openly, the registration is likely to be taken into account. Anyone can obtain a certified copy of it and inspect it.
The new enactment also mentions the provisions governing the substitution of an application prior to registering a design.
The district court now has the authority, under new laws, to transfer matters to the high court where the court has jurisdiction. This is only possible if the individual is contesting the legitimacy of the design registration.
Incorporates provisions about the controller’s delegation of authority to other controllers and the examiner’s duties.
In the event of an infringement, the new provision increases the severity of the penalty.
It revokes the two-year confidentiality of a registered design.
It includes measures for avoiding certain restrictive requirements in order to regulate anti-competitive practices inside contractual licenses.
When it is physically brought into the sphere of public records, the registration is taken into account. Anyone can examine the records and obtain a certified copy of them.
It includes provisions for changing the application before registering the design.

Registration of designs in India

The Act is intended to protect unique or original designs that can be applied to a specific article that can be created by an industrial process/means. Designs play an important role in a consumer’s purchasing experience because items are frequently purchased for both utilitarian and aesthetic reasons. The primary goal of design registration is to ensure that the artisan, creator, or originator of an aesthetic design is not deprived of his legitimate benefit by others applying it to their goods.

As a result, the originality of a new design has been regarded as the origination of a design from the author of such design, and it covers examples that, while ancient in themselves, are novel in their application. In Shree Vari Multiplast India Pvt. Ltd. v. Deputy Controller of Patents & Designs & Others (2018), the Hon’ble High Court of Calcutta stated that the law of design rights does not prevent competitors from using the same methods or principles of construction to create competing designs, as long as the competing designs do not have the same shape or configuration as the original design of the prop.

Essentials for a design registration

As per Section 4 of the Act, the design must fulfil the following criteria for registration:

It must be new or novel. Only designs that are one-of-a-kind can be considered for registration. Only a combination of already registered designs can be evaluated if the combination results in fresh visuals.
It should not have been recognized by publication or use anywhere in the world, including India, or prior claimed in application elsewhere, i.e. does not belong to the public domain or the state of the art.
It must be significantly distinguishable from previously known designs or a blend of previously known designs.
There should be no controversial or vulgar content.

Landmark cases

Bharat Glass Tube Limited v. Gopal Gas Works Ltd. (2008)

In the case of Bharat Glass Tube Limited v. Gopal Gas Works Ltd. (2008), the respondents (Gopal Glass Works) had registered and obtained a certificate for their design for diamond-shaped glass sheets. The appellants began marketing with this design. These designs were developed in partnership with a German firm.

They went to court after discovering that the appellants were exploiting their design. The appellants asserted that the respondents’ designs were not novel because the German company had been using them since 1992 and they had already been published in the United Kingdom Patent Office, therefore they had lost their novelty. When the case was appealed to the High Court, the designs were returned to the respondents. When the case reached the Supreme Court, it upheld the Calcutta High Court’s verdict.

Disney Enterprises Inc. v. Prime Housewares Ltd. (2014)

In Disney Enterprises Inc. v. Prime Housewares Ltd. (2014), international registration of industrial designs became a point of contention in India. An action was launched by the Disney companies for the infringement of their international registered designs against Prime Housewares, a Mumbai-based company that used to manufacture figures such as Mickey Mouse, Donald Duck, and others.

The Delhi High Court ruled that the plaintiff’s trademark is protected but not the designs under Indian law. The court issued an order for the infringement of the firms’ trademarks. The Indian company was directed to deliver all infringing material to the enterprises so that it could not be utilised again.

Kemp and company v. Prima Plastics LTD. (1998)

In Kemp and Company v. Prima Plastics LTD. (1998), it was decided by the Bombay High Court that disclosure of a design by the proprietor to a third party cannot be claimed as publication unless the disclosure is made in good faith.

Hello Mineral Water PVT. LTD. v. Thermoking California Pure (1999)

In the case of Hello Mineral Water PVT. LTD. v. Thermoking California Pure (1999), a cylindrical-shaped water dispenser device was not declared unique on the grounds that simple shape and form are insufficient to establish innovation.

Reckitt Benckiser (India) Ltd. v. Wyeth Ltd. (2013)

The problem, in this 2013 case, was with the registration of S-shaped spatulas. The defendant, in this case, Wyeth Ltd., argued that the appellant’s design was not unique because it had already been registered in another nation before it was registered in India. There was also the withholding of information regarding past registration in a foreign country.

The Delhi High Court ruled that if it can be proved that the design was disclosed anywhere in India or a foreign country using the methods specified in Section 4(b), the registration in India will be regarded as canceled and can be used as a defense against alleged infringement under Section 22(3).

M/s S K Industries v. Dipak Ghosh (2009)

In this 2009 case, the plaintiff claimed that there was a certain cup in which jelly was packed and marketed and that the defendant was not permitted to use the design.

The Court determined that the cup utilized by the plaintiff had no novelty and was simply a standard cup with no originality in shape or dimension. The cup is the same as those made by most manufacturers for storing stuff.

Conclusion

Designs play an important part in visually distinguishing one’s products from competitors, and with the development of competition in the business, preserving one’s designs is critical to gaining an advantage. The aesthetic appeal criteria for being a design leave an imprint in the consumer’s mind and, over time, associate with the owner alone. The Designs Act of 2000 was enacted with the intention of encouraging innovation and creativity in line with the global industrial and technological sectors.

With its streamlined application process and period amendments, the niche and extensive framework ensure proprietors/owners are awarded statutory rights, in accordance with international treaties and agreements such as the 2014 amendment to the Designs Rules, which adds ‘small entity’ as a new category of the applicant in addition to a natural person.

References

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Digitalization of the legal world

By

Rachit Garg

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November 24, 2021

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This article is written by Vivek Maurya from ICFAI Law University, Dehradun. The author has described the impact of digitalization on the legal world during the pandemic.

Introduction

Technology has infiltrated every business today. Technology has substantially transformed the way we operate and offer services, from AI-based HR solutions to blockchains in the banking sector, from fin-tech to underwriting in insurance. These technological changes have not spared the legal profession. The manner legal services are offered has evolved dramatically during the last two decades. No one could have predicted that one day, courts would be held online or that one would be able to draft a contract using technology back in the year 2000 but one cannot dispute that legal tech is here to stay, given the rising adoption and usage of disruptive technology by legal professionals. The legal services sector must digitize to recruit and retain talent, increase profitability, and measure itself against global competitors. Young professionals are becoming partners in law firms in greater numbers than ever before. A more efficient and contemporary style of working is required for this new generation of professionals.

Beginning of the millennium

The development of websites that offered a digitized searchable library of case laws and legislations brought legal technology into the spotlight around the year 2000. Legal technology expanded throughout time, expanding into increasingly sophisticated legal fields such as contract administration and automation, document automation, e-billing software, and legal analytics, among others. Technology has also been utilized to revolutionize the way legal education is delivered to students in recent years.

The Supreme Court digitized one crore and five lakh pages of civil appeals in 2017 and the government created an Integrated Case Management System (ICMS) to help the Indian court digitize its services.

We have witnessed how technology has come to the aid of every area and business, including the legal sector, since the start of COVID-19. E-signature, online contracts, virtual courts, online meetings, and e-billing software solutions have guaranteed that legal services are provided without interruption even during pandemics.

Kickstarting the digitalization of the legal sector

A digital, future-oriented law practice maximizes billable time in and out of the office, improves administrative and non-legal job efficiency, and delivers high-quality service to customers. Implementing practice management systems that automate procedures and improve cooperation inside an organization and with third parties is one approach to do this.

These solutions provide users with remote access to documents, allowing them to modify them while on the road, eliminating the need for a physical presence at a designated work location. File sharing becomes a breeze, and past data can be found with a quick search.

In the legal industry, automating procedures is critical since businesses require continual flexibility as they expand their operations. It will be simpler for Indian law firms to align the hourly fees of Indian lawyers with their foreign counterparts by adopting international best practises.

The Indian legal industry has struggled to deal with competition-driven prices. According to estimates, despite the adoption of legislation such as the Goods and Services Tax, which expanded the area of work for the business. The sector has not grown at a rate that is commensurate with its potential. By increasing efficiency and incorporating international best practises in routine operations, practise management systems can assist in solving this issue.

Despite the numerous benefits, such as greater transparency and efficiency, the country’s adoption rate of practice management systems is only 0.1 percent. The necessity of the hour is to hasten their adoption and to build an ecosystem that accepts digital solutions to achieve better results.

Evolution of digitalisation in the legal industry

The legal industry has restructured its practice patterns and operations. Technology has become a centre of development in such a changing ecosystem, assuring the redesign of processes, client delivery, efficiency, and profitability, as well as company economics. The following developments are arising from the evolution of digitalization in the legal sector in the current environment.

Cultural change

Document automation

Document automation is a type of technology that helps with the drafting process. It assists attorneys and legal specialists in consolidating all legal papers into a single system, allowing them to manage numerous versions and rapidly produce customised documents. You can automate the processing of complex contracts and agreements with document automation by creating sophisticated document templates that can be quickly changed with deal specifics. Furthermore, Non-Disclosure Agreements may be easily created and executed (NDAs).

It will cut down on the amount of paperwork needed to construct lengthy contracts, agreements, and wills. You will also save time by not having to read legal paperwork from beginning to end. You’ll be able to keep organised while increasing your team’s productivity.

E-billing

The e-invoicing method improves cash flow by making billing easier and faster while also decreasing billing mistakes. It increases productivity by tracking progress in real time, reduces billing complexity, and creates a dependable and efficient automated billing procedure.

Legal businesses will no longer need to retain a stack of paper invoices or type information into spreadsheets to produce bills if they use advanced e-billing systems. Instead, automated e-billing systems allow law firms to produce bills automatically and exchange them with other law offices without the need for human interaction.

E-filing

We don’t know when life will return to its previous state. Until then, we’ll have to hold off on going outside as much as possible. As a result, demand for e-filing is increasing as people want to submit their cases online since they are unable to attend court due to the epidemic.

Undertrials and prisoners can now communicate directly with the court by filing petitions and papers online, thanks to the introduction of e-filing apps. It may be able to pay court costs, penalties, fines, and other forms of fees online using the digital solution. Due to the availability of summons on mobile apps with e-filing software, delayed cases can be expedited by submitting summons fast.

Both the parties concerned, legal professionals and clients, save money by filing documents electronically. Parties will not be needed to physically submit papers nor will they be required to send hard copies to chambers for a judge’s perusal. When someone submits a document with the court, it is promptly reviewed and authorised. If a document is refused, there is no need to wait for it to be returned. Furthermore, consumers would not need to go to the courts, giving law firms more time to work on legal paperwork.

E-hearings

The major concern is how can the court system continue to function efficiently and secure the timely delivery of justice under the circumstances of limiting physical interactions and ensuring social distance. As a result of these circumstances, the idea of e-Hearings has emerged, which refers to hearings conducted through digital networks, such as video conferencing. All of the parties engaged can communicate via audio-video web conferencing.

E-hearings are advantageous because they reduce expensive court expenses associated with infrastructure, security, transportation and the transfer of convicts from jail to courts. Courts may successfully proceed with digital hearings until everything returns to normal and they can even utilise it post-COVID-19 for small legal matters to save even more time and money. Many of the courts have resorted to e-hearing like Gujarat High Court, which not only proceeds e-hearing but also streams it.

Remote working

For many years, businesses have been urged to adopt regular work-from-home practises and rules. Though the legal profession is notorious for being reluctant to adapt, when compelled to do so because of the COVID-19 outbreak, it became evident that legal activities may be managed effectively from a distance.

To establish successful and dependable work-from-home policies, legal companies require technological tools. You don’t have to start from scratch to create a new solution. Instead, you may manage your remote workers by integrating web conferencing and payroll systems with your existing app or website.

You must consider the security of the information sent while remote working, when integrating or utilising any tool. Legal data may be more sensitive as a result, you should seek advice from a technology partner who is familiar with security issues and can assist you in providing the finest and most secure solution.

Due diligence using AI

To uncover information about their cases, legal experts must do extensive background investigations and analyse papers thoroughly. Legal professionals can utilise the information they collect to help them make better decisions and provide solid advice to their customers. AI can assist in speeding up the laborious job of doing due diligence in a more precise and effective manner.

Communication and collaboration

Video conferencing tools

One of these options is video conferencing for legal firms, which allows business owners and workers to interact with each other and their clients quickly and easily because attorneys rely on face-to-face consultations and meetings to settle transactions, interact with clients and develop their practises, the legal sector stands to profit the most from video conferencing. With video conferencing, legal practitioners may complete all of these responsibilities at their leisure, increasing productivity and efficiency.

Video conferencing is a cost-effective and time-saving method of lowering travel expenditures and time since it allows users to simulate the setting and ambiance of a professional conference room. If legal professionals have cases involving witnesses scattered across the country or overseas, courthouses in other cities, or clients in different parts of the world, video conferencing allows these connections to be maintained successfully and all thanks to technology that is dependable and allows for crisp, clear sound.

Example – Cisco Webex, Zoom etc

Rise of remote working

Whether in a legal firm or in-house, technology has drastically changed how lawyers practise law and what it means to be a lawyer and this transition can be seen in the enhanced capacity to access information at any time and from any location as well as the ability to stay connected to the office at all times. Long days in the workplace are becoming more flexible as a result of this connectivity. Because of developing technology, remote employment in the corporate legal field is now a possibility. In addition, the COVID-19 epidemic has forced the legal sector, like many others to work from home.

Working from home has led to the conclusion that working remotely is both cost-effective and technologically viable for attorneys. People are afraid to resume their working habits until they obtain a COVID-19 vaccination, thus the trend of working from home is expected to persist even when governments allow mobility. Legal professionals may interact with their clients and coworkers in real time using real-time communication tools. It will aid in the facilitation of rapid and effective communication and cooperation.

Online training

Due to the temporary closure of law schools, colleges and law firms as a result of the COVID-19 epidemic, law practise and study has migrated online. Law students, for example, can communicate with their professors via video/audio conferencing or real-time messaging apps. Additionally, law firms and universities might provide webinars for law interns to guarantee that their practise and education are not hampered by poor weather or limited travel.

Virtual legal assistants/AI-enabled chatbots

Chatbots are changing nearly in every sector and AI technology may be used to deliver legal services to individuals. People can start an online discussion with a virtual legal assistant or a chatbot to obtain the immediate assistance they need. Lawyers can save time by using automated legal chatbots to answer clients’ minor questions. They will be able to concentrate on abilities that are important to them, allowing them to provide greater service to clients.

For example, a legal chatbot powered by AI can assist customers in scheduling appointments with lawyers depending on their needs. Chatbots can also assist legal firms in generating more leads by conversing intelligently with clients and encouraging them to share contact information.

Example – Netomi, atSpoke, WordPress Chat CSML etc.

Casework consolidation

eDiscovery software

As a part of an investigation or litigation, eDiscovery software allows legal professionals to analyse, evaluate, and create electronic records. It may assist attorneys in uncovering important information about any case while minimising risk, speeding up resolutions and lowering expenses.

eDiscovery is a legal technique that allows parties to electronically share information and evidence. eDiscovery software is utilised for more than simply document review, it’s also used for internal investigations and tax audits. The program functions based on several criteria including the data you wish to examine, the time of the review and the volume and complexity of the data. It lowers the expense of doing a lot of paperwork.

Example – Logikcull, DISCO Ediscovery.

Legal case management software

Case management software allows lawyers to handle many areas of practise from a single platform. Case management software allows you to access client information, matter information, and all of your files at any time, whether you’re at home or in the courthouse. Client management, email management, issue management, reporting, document management and document automation are among the functions that case management software allows legal practitioners to accomplish.

Example – App4Legal, Noble Justice, Wrike, TimeSolv Legal Billing etc.

Conclusion

With the rapid outbreak of the epidemic, we were able to normalise several working arrangements that would have been inconceivable in the pre-COVID era. Many law offices have gone completely remote with hearings performed via Virtual Conferencing, client meetings handled via Zoom and Webex, and files made available online. Many attorneys believe that technology has completely changed the way they operate in the last year. The question that arises is how technology will influence work in a post-COVID future. A world that has already experienced the benefits of working from home due to technological advancements will not be hesitant to do so. The acceptance of technology as a supplement rather than a substitute is apparent, and now that people are willing to embrace tech solutions, legal tech is on its way to being the rule rather than the exception.

References

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Where we are on AI inventorship and where we should be heading : a US perspective

By

Shoronya Banerjee

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November 24, 2021

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This article has been written by Ben Saju Zacaria, pursuing the Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Aatima Bhatia (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

The legal rights or the protection available for the works, invention, literal or artistic work innovating from a person’s mind are collectively known as Intellectual Property Rights. They can be divided into two categories.

(i) Copyright and related rights.

(ii) Industrial property.

(i) Copyright and related rights: These refer to the legal rights and protection available for creators of artistic and literary works. These rights can even include musical works and computer codes. These rights help in the monetisation and prevention of unauthorised uses.

(ii) Industrial property: These rights can be further classified into two categories;

Trademarks and geographical indications: These are the items that are attributed either to their origin or quality.
Patents, industrial and trade secrets: These are legal rights and protection given to innovations, design and the creation of technologies. These rights prevent unauthorised usages

Except, for trade secrets, all other rights are given for a finite period to inventors/companies.

The past few years have seen a meteoric rise of artificial intelligence (AI) products, services, and applications. Earlier, companies and individual inventors all over the world recognised the importance of AI and began seeking the patent rights of various aspects of AI technology. It wasn’t until 2018 that Dr. Stephen Thaler filed a patent application for a food container and a light-emitting device that identified an AI, known as DABUS, as an inventor. This article seeks to explore the current status of AI inventorship in the US.

Artificial intelligence

Artificial-Intelligence is one of the most advanced and sophisticated branches of computer science; it is used to build smart computers that are capable of performing tasks without human intervention. Their capability is said to be equivalent to that of human intelligence. Some of the mainstream examples of AI are Tesla cars, SIRI, Alexa, Netflix recommendations, etc.

The idea of AI is majorly attributed to Mr. Alan Turing and his seminal work “Computing Machinery and Intelligence” where he argued that there is no convincing argument against the thought that machines cannot think. He created a test, which is still used, commonly known as the Turing Test which one can apply in order to distinguish between the reply of a human and a computer. It was Mr. John McCarthy, in the year 1956, who coined the term Artificial Intelligence during the first-ever AI conference held at Dartmouth College. During that year Mr. Allen Newell, J.C Shaw, and Herbert Simon created the first working AI software known as the logic interest.

2020 witnessed the great effect of AI by the LinearFold AI algorithm introduced by Baidu which helped to develop the vaccine for the SARS-CoV-2 pandemic in its early stages. This software can predict the RNA sequence of the virus in 27 seconds, which is 120 times faster than other existing methods.

Artificial intelligence and patents

AI aided inventions are those inventions in which the inventors are humans and they have invented the product seeking patent with the help of computer AI. Whereas AI-generated inventions are those inventions that are generated by AI, and where AI is the inventor of the product seeking the patent.

Dr Thaler’s DABUS

Until 2018, humans were mentioned as inventors in patent applications that were connected to AI inventions. But, Dr. Thaler filed an application for a patent for a light-emitting device and food containers where the name of the inventor was mentioned as DABUS (Device for Autonomous Bootstrapping of Unified Sentience) which is an AI. Dr. Thaler, along with these applications, had filed an international patent application for both the inventions under the Patent Cooperation Treaty (PCT). In all the applications, DABUS was the inventor and Dr. Thaler remained the owner of the rights.

On the 28th of July 2021, the South Africa Patent journal based on the PCT application allowed the patent without any debate about the non-human inventor. In Australia, while considering the application, the Deputy Commissioner of Patents required that the inventor needed to be a human and added that AI cannot be an inventor. Subsequently, Thaler filed a judicial review and he mentioned that the Australian rules do not avoid AI systems being considered as an inventor. On 30th July of 2021, The Federal court of Australia through the case Thaler v. Commissioner of Patents admitted that AI can be accepted as an inventor in the patent application.

DABUS in the US

Till today, DABUS has not been acknowledged as an inventor by USPTO as per the US patent laws. In 2019, the US Patent and Trademark Office (USPTO) issued a notice to Dr. Thaler stating that he must file the missing parts in the application, i.e he had to update his name as the inventor’s name. Dr. Thaler filed several petitions requesting USPTO to reconsider the notices. Despite every petition, USPTO rejected the applications making AI an inventor through its decision. The decision was based on the fact that the inventor has to be a human being. Aggrieved by this decision Thaler sued Andrew Hirshfeld, the director of the USPTO and the under Secretary of Commerce for Intellectual Property and the USPTO in the Virginia Federal Court.

The argument made by Dr.Thaler was that the attitude of USPTO prevents AI-generated inventions, thus discouraging innovations and encouraging misrepresentation of the inventors for the work that they haven’t done. He added that there is no case or statute in the US mandating that an AI can’t be an inventor. He sought relief for making AI to be listed as a natural person thus reinstating his two applications. In the appeal filed by Thaler, in Thaler v. Hirshfeld the court refused to allow the patent application mentioning DABUS the AI as the inventor of the applied items.

The court affirmed the finding of the USPTO’s denial of the application and referred to the plain statutory language of the US Patent Act and the Federal Circuit Authority found that AI cannot be an Inventor because as per the statutes, the inventor has to be an “individual”, which according to several interpretations and court decisions has to be a human being. The court also additionally stated that Thaler’s arguments were based on policy consideration and the purpose of the patent clause of the U.S Constitution and decided to amend the scope of inventorship. Dr Thaler appealed to the US Court of Appeals for the Federal Circuit.

US patent laws

The patent laws are one of the most advanced patent laws today. By analysing the specific sections of the laws we would get a better understanding of why AI can’t be considered as an inventor. 35 USC 100 of the US Patent Act defines some important words in its list of definitions. As per Section 35 USC 100 (a)11 of the United States Patent Act, the term ‘Invention’ is defined as invention or discovery. The Act defines the term inventor as the individual, or in a joint invention, the individuals collectively who invented or discovered the subject matter of the invention. As per Section 35 USC 116 (a) of the United States Patent Act, Joint inventions are defined as “When an invention is made by two or more persons jointly, they shall apply for patent jointly and each make the required oath, except as otherwise provided in this title.” Inventors may apply for a patent jointly even though

(1) they did not physically work together or at the same time,

(2) each did not make the same type or amount of contribution, or

(3) each did not make a contribution to the subject matter of every claim of the patent.

In the US, an inventor is required to be a human because the inventor engages in the mental step of conception which, according to most respective patent offices or the courts, can only be performed by a human. While AI has developed by leaps and bounds, there is no doubt that there still exists a gap in terms of creative thinking, original thought, etc. Many jurisdictions are of the opinion that these limitations are indeed important to inventorship and until AI transcends these limitations, it continues to be a tool as opposed to an inventor.

While AI doesn’t fit the criteria and parameters of the current definition of the inventor, it is highly likely that within the near future an AI will be able to simulate human thought, think creatively, and independently identify and solve problems. If that happens, AI is likely to satisfy the current definition of what it takes to be an inventor under various laws. If current laws are not changed to accommodate the changing times, AI inventors will not qualify for IP protection.

DABUS has ignited a debate regarding AI inventorship. While on one hand a law can be passed completely restricting AIs as inventors, another option is to make changes and allow AIs to be treated as legal persons. A definite law on the issue might aid in putting an end to the debate and harmonise interpretations of the term “invento.”

Conclusion

35 U.S.C. §§ 100-101 of the US Patent Act defines an inventor as a person who “invented or discovered the subject matter of the invention.” Therefore, the applicant cannot name an AI as the inventor of the co-inventor of a product. Instead, the applicant can still get the patent by mentioning by name the human who produced the product using the AI’s output. This process is still being followed by the technology companies where their work highly relies on automated systems. The companies are hoping that in the current pace of innovation they could add an AI as the co-inventor, where they have made the invention with the help and assistance of the systems. The tech giants believe that it would not take much time for the US Congress to make a favourable decision recognizing AI as an inventor and allowing AI to be named as an inventor in the patent application.

References

Recent Trends in AI-related Inventions: https://www.jpo.go.jp/e/system/patent/gaiyo/ai/ai_shutsugan_chosa.html
STEPHEN THALER v. ANDREW HIRSHFELD: https://www.dwt.com/-/media/files/blogs/artificial-intelligence-law-advisor/2021/09/thaler-v-hirshfeld-decision.pdf
DABUS Will Need to Wait—U.S. District Court Affirms USPTO’s Denial of AI System as Inventor by Scott Adams, Barry Stulberg. https://www.jdsupra.com/legalnews/dabus-will-need-to-wait-u-s-district-7992231/
Patentability of AI-Generated Inventions –Is a Reform of the Patent System Needed?: https://www.iip.or.jp/e/summary/pdf/detail2017/e29_02_Ramalho.pdf
When Artificial Intelligence Systems Produce Inventions: An Alternative Model for Patent Law at the 3A Era by Dr Shlomit Yanisky Ravid & Xiaoqiong (Jackie) Liu: http://cardozolawreview.com/artificial-intelligence-systems-produce-inventions/
‘AI-Generated Inventions’: Time to Get the Record Straight? By Daria Kim.: https://academic.oup.com/grurint/article/69/5/443/5854752#204487437
On the horns of a dilemma: Inventorship of AI-generated inventions by Prashanth Shivadass, Rachana Pise: https://www.barandbench.com/view-point/the-viewpoint-on-the-horns-of-a-dilemma-inventorship-of-ai-generated-inventions
United States: Artificial Intelligence As The Inventor Of Life Sciences Patents? by Xin Hu Rasmussen and Baldassare Vinti. https://www.mondaq.com/unitedstates/patent/1101942/artificial-intelligence-as-the-inventor-of-life-sciences-patents
Artificial Intelligence as the Inventor of Life Sciences Patents? By Xin Hu Rasmussen & Baldassare Vinti. https://www.proskauerinlifesciences.com/2021/08/artificial-intelligence-as-the-investor-of-life-sciences-patents/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration

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Settlement of non-compoundable offences

By

Diva Rai

-

November 24, 2021

0

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This article is written by Himanshu Mahamuni, a student of Government Law College, Mumbai. This article analyzes the provisions of law and case laws that permit mutual settlement even in non-compoundable offences.

Table of Contents

Introduction

To escape from the tedious and costly process of court proceedings, parties choose to mutually settle disputes between them, outside the court. The cases can be of civil or criminal nature. However, the cases involving serious issues cannot skip the court proceedings and mutual settlement is not accepted. The settlement depends on the nature of the offence; whether it is compoundable or non-compoundable. The compoundable cases are listed under Section 320 of the Criminal Procedure Code and matters not listed under this are non-compoundable offences. Such Offences cannot be settled mutually because mere monetary relief does not heal the suffering of the victim’s mind and body. However, courts have discretion on the issue concerning non-compoundable offences.

This article discusses what offences come under the headings of ‘compoundable’ and ‘non-compoundable, how the two are distinguished and the differences between such offences. Lastly, the mutual settlement in non-compoundable cases has been discussed in light of Supreme Court judgements.

Compoundable and non-compoundable offences

Compoundable offences

In compoundable offences, parties to the dispute may enter into a compromise or settlement where the accused person provides an amount in the form of consideration to the aggrieved person. A court may dispose of the case, as the case is settled between the parties. The compoundable offences are given in Section 320 of the Criminal Procedure Code. These offences are less serious and settled only in good faith. Compoundable offences fall into two broad categories:

Where the permission of the court is not required

Some offences such as trespass, adultery, defamation, etc. do not require the court’s permission to be compounded.

Where the permission of the court required

Offences of a more serious nature such as theft, assault and criminal breach of trust require the court’s permission to be settled.

Parties ready to compound shall request the application of compounding in the same court where trials were previously held for the case. The accused shall be considered acquitted if compounding of the charge takes place in the same way as the accused would have been acquitted in a trial by court.

Non-compoundable offences

The offences under non-compoundable offences cannot be compounded, but have to go through the whole trial to be quashed. These offences are of a more serious and grievous nature, which affect society as a whole and not just an individual. The reason to not allow such offences to be compounded is that it would set a bad example in society to get away with serious offences. Non-compoundable offences are against the public policy and thus settlement is not allowed by a regular court to such offences. The list of offences under this is non-exhaustive, as the offences which are not given in Section 320 of the Criminal Procedure Code are considered to be non-compoundable offences. Such offences usually include voluntarily causing grievous hurt, hurt by dangerous weapon, dishonest misappropriation, kidnapping or abducting to murder, etc.

Differences

Compoundable Offences	Non-Compoundable Offences
Nature of these types of offences are less serious	Nature of these types of offences is more grave.
These offences only impact a private person’s rights.	These offences may impact a private person as well as the society at large.
These offences are mentioned in Section 320 of CrPC.	These offences are those which are not mentioned in Section 320 of CrPC.
Compromise is allowed with or without the permission of the court.	No compromise is allowed even on permission from the court.
Full trials are not continued on compromise	Full trials are to be held with a judgement.
Cases are generally filed by a private person.	Cases are generally filed by the state.
Example-With Permission- theft, criminal breach of trust, grievous hurt, dishonest misappropriation, etc.Without Permission- adultery, causing hurt, defamation, criminal trespass, etc.	Example- Voluntary hurt by dangerous weapons, wrongful confinement for 3 days or more, counterfeiting trade or property, etc.

Difference between the powers granted in Section 320 and Section 482

Section 320 of the CrPC provides the list of offences that are eligible to be compounded by the court. Section 482 confers powers on the High Court to make any order which it deems necessary to:

give effect to the orders under CrPC;
prevent abuse of the process of any court, or
otherwise to secure ends of justice.

The Supreme Court asked High Courts to refrain from quashing criminal proceedings which are of heinous or serious nature, or where the interest of the public is involved, in the case of Gian Singh v. State of Punjab (2012). Whereas in cases when the offence is civil, where the wrong is personal, and the matter is resolved between the parties consensually, the proceedings can be quashed by HC. However, the High Court can quash criminal proceedings where the conviction is not possible and the parties are ready to settle the case amongst themselves even if the offence did not fall under compoundable offences.

The difference between Section 482 and Section 320 is the power exercised under Section 320, which enlists that compoundable offences can be executed straight away, without specific permissions required. But power exercised under Section 482 to quash any criminal offences, which are not in the list of compoundable offences, shall be used cautiously with due care that is administered with proper scrutiny. The judges of courts have a meticulous job to check on all the necessary parameters and strike a balance between which matters are of interest to be compounded or not.

Supreme Court on the compounding of non-compoundable offences

When the crime is civil, the harm done affects only the individual and thereby invites damages only on him. But when the crime is criminal, its effect is not limited to an individual, but on the society as a whole, and the offender must be punished to instil a sense of fear. This is the reason why most offences in criminal cases are non-compoundable. The criminal offences which can be compounded are only those which are of less significance to society and less serious.

The Supreme Court has been cautious to declare which cases of criminal nature are to be of compoundable nature and laid down proper guidelines to quash criminal offences by the High Court. The Supreme Court had laid down in the case of Rameshchandra J, Thakkar vs. A.P. Jhaveri (1972) that if an offender is acquitted based on compounding and it turns out that the compounding done was invalid, such acquittal can be overturned by the High Court by using its revisionary power. Furthermore, if a non-compoundable offender is acquitted on an invalid basis, such acquittal can be overturned by the High Court. Following case laws will clarify the criminal cases to be framed as compoundable.

Case Laws

Gian Singh v. State of Punjab (2012)

In the case of Gian Singh, the Supreme Court held that High Courts shall not quash the criminal cases of serious and heinous nature, or in connection with public concerns. This ruling is applicable in all criminal cases, except in the case where conviction in the criminal offence is rarely possible and longing of the case would be detrimental for justice of the accused. The offences of the private nature arising out of family dispute or matrimony such as dowry, etc can be settled by the power of the High court under Section 482.

Mahesh Chand v. the State of Rajasthan (1988)

In the Mahesh Chand case, the Supreme Court invoked Article 142 of the Constitution to give complete justice to the parties. This article permitted the Supreme Court to compound non-compoundable offences. This power was to be exclusively used in the case of an attempt to suicide under Section 307 of the Indian Penal Code (IPC) to compound the offence in this case.

Ram Lal v. the State of Jammu & Kashmir (1999)

The Ram Lal case altered the judgement given in the Mahesh Chand case. The provisions given under Section 320(9), which lists out compoundable offences, cannot be ignored. The offences declared by law as non-compoundable cannot be compounded, even with the permission of the court.

B.S. Joshi v. State of Haryana (2003)

In the B.S. Joshi case the Supreme court was faced with the question of whether High Courts possess the power to quash an order involving non-compoundable offences under Section 482 of the CrPC. It was held that to achieve justice to the parties of the case, the High Courts have the power to use its jurisdiction to quash a case involving Section 482, even if the case was non-compoundable.

State of Rajasthan v. Shambhu Kewat (2013)

In the case of Shambhu Kewat, the Supreme Court observed that the powers of courts to compound offences of criminal nature-related matters given under Article 320 of the CrPC. The scope of the High Court to observe material facts and form opinions shall be according to Article 482, to meet the ends of justice whose ultimate consequence may be acquittal or dismissal of the indictment. In this case, the Supreme Court cleared the source to be referred to for acquittal by compounding to the High Court and the Supreme Court.

Narinder Singh v. State of Punjab (1947)

In the case of Narinder Singh, the judgement in the Gian Singh case was reconsidered by the Supreme Court. This case conferred powers upon High Courts to quash criminal cases of non-compoundable nature when the parties were ready for a compromise while exercising their power under Section 482 of the CrPC. However, a great amount of caution was to be maintained while exercising such power. This case ultimately led to the passing of certain guidelines by the Supreme Court for quashing the criminal proceedings by the High Court of non-compoundable nature. Using the powers under Section 482 as the determinant power of the High Court for acquittal was sourced from it observed in the Shambhu Kewat case. The guidelines are as follows-

Nature of offences

The High court is allowed to use its powers under Section 482 of CrPC to quash criminal proceedings of non-compoundable nature if the offences involved are predominantly of civil and commercial nature.

Serious Offences

The High Court does not quash the offences under Section 482 of the serious and heinous nature of the CrPC which have an impact on society.

Section 307 of IPC

This High Courts can quash the offence under Section 307 that are categorised as heinous and serious offences and are against society but only when there is enough evidence to prove it on various parameters. The collected evidence shall be accompanied by the charge sheet filed or the charges framed and/or during the trial i.e. not permissible when the matter is under investigation.

Special Statues

The criminal offences registered under various statutes or when the offences are committed by the public servant while in service shall not be quashed by the High Court based on the compromise.

Antecedent/Conduct

The courts need to consider the antecedent or conduct of the accused while considering the compromise between the parties under Section 482 of the CrPC in case of non-compoundable criminal offences when the offence before the High Court is of private nature.

Conclusion

Offences done against an individual of a less serious scale usually come under compoundable offences, that is the mutual settlement between them can take place easily without any permission. However, the Supreme Court has different opinions over the power of the High Court for the compounding of non-compoundable offences which is now a settled debate.

Initially, the High Court was hesitant to allow any settlement relating to non-compoundable offences between the parties. Over time the Supreme Court brought down proper guidelines in the case of Narinder Singh such as the Civil nature of the offence, its seriousness, Section 307, special statutes and antecedents or conduct of the offender. The High Court can use the power given under Section 482 to allow mutual settlement even in non-compoundable offences. Compounding of offences shall be allowed of the offences that are not too heinous and does not endanger the public life or society which may result in irreparable damage. Even if courts allow such compounding and later find out that it was based on invalid claims, courts are conferred with powers to overturn the decision.

References

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Importance of unwritten principles of the Indian Constitution

By

Diva Rai

-

November 24, 2021

0

This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article discusses the importance of unwritten principles of the Indian Constitution.

Table of Contents

Introduction

The great majority of modern constitutions enshrine the state’s essential concepts, government structures and procedures, and people’ fundamental rights in a higher law that cannot be modified unilaterally by ordinary legislative action. A Constitution is a name given to this higher law. The Constituent Assembly took into consideration a lot of factors while framing the Indian Constitution among which many can be found in form of Articles, Schedules and different parts.

But there exists a few key principles as envisioned by the Constituent Assembly that provide the ground on which the Constitution is functioning and is supposed to function. These principles are not expressly mentioned in the Indian Constitution but the provisions find their reference in some way or the other. The judiciary has time and again reminded the State of such principles while deciding on landmark cases and therefore even if the principles are unwritten, their relevance cannot be ignored while discussing the Indian Constitution. This article aims to put forth some relevant unwritten principles of the Constitution and the importance they hold.

Federalism

The term ‘federalism’ in relation to the Indian Constitution signifies the relation between the Centre, the state governments and the local governments. There appears no express mention of the term ‘federalism’ in the Constitution of India but the principle is very much embodied in Part XI of the supreme law. This Part of the Constitution discusses two broad relations between the Union and the provinces namely:

Legislative relations (Articles 245-255);
Administrative relations (Articles 256-263).

The Seventh Schedule of the Constitution lays down three Lists which are:

The Union List with 97 subjects providing exclusive powers to the Central Parliament to deal with them;
The State List with 66 subjects providing exclusive powers to the state legislature to deal with them;
The Concurrent List with 47 subjects providing powers to both the Union and the state legislature to deal with them.

From the above three points, it is to be remembered that the Union List will prevail over the Concurrent list which prevails over the State List. Article 245 of the Indian Constitution lays down the provision for territorial distribution of legislative powers between the Centre and the states. While the Centre has the power to make laws for the whole of Indian territory, the states have the powers to make laws for the whole or any part of the state’s territory.

The Indian Constitution has nearly all of the key characteristics of a federal system, but it also contains safeguards that ensure the Centre retains dominating control over the states even in normal times. Clause (2) of Article 245 expressly provides that the parliamentary law shall not be considered invalid merely because it has an extra-territorial operation. Article 248 of the Constitution needs a special mention here. This provision discusses the concept of residuary powers of the Union. The Article when read with item 97 of the Union List provides that the Parliament is empowered with exclusive right to formulate any law with respect to the items that are not listed in either the State or the Concurrent List under the Seventh Schedule.

The relevance of federalism in the Indian Constitution

The unwritten principle of federalism is relevant with respect to the Indian Constitution as it not only promotes equal participation of both Central and the state governments but also provides a check and balance to look after misusing of powers by the Centre over the state and the local governments by means of the test of repugnancy as provided under Articles 254 and 251 of the Constitution.
The dual system of government imposes limitations upon each other in respect of taxing the instrumentalities of each other. This is known as the doctrine of immunity of instrumentalities.
Federalism is a key principle in any Constitution adopting it. Along with the distribution of legislative and administrative powers, the Constitution has established financial relations between the two governments under Articles 264 to 289.
Coordination and harmonious relationship between the Centre and the states is promoted by means of the federalism feature of the Constitution. The powers of the governments are limited by means of federalism which India adopted from the Government of India’s Act, 1935 before the Constitution had acquired a definite structure.

Thus although unwritten, the principle of federalism very much lives in the spirits of the Constitution.

The doctrine of Basic Structure

In order to discuss the doctrine of basic structure, one needs to understand the tussle between Article 13 and Article 368 of the Indian Constitution dealing with laws inconsistent with the Fundamental Rights and the power of the Parliament to amend the Constitution respectively.

In the case of Shankari Prasad v. Union of India (1951), the 1st Constitutional Amendment Act, 1951 which was broadly known for the abolition of the zamindari system was challenged. Articles 31-A and 31-B were brought about that intended to protect the right to property. The question that arose before the Court was whether the Parliament can amend the fundamental right to property or not. The decision made by the Supreme Court of India was that the term ‘law’ under Article 13 (2) signified ‘law in the ordinary sense’ only and therefore, Article 368 does include the power to amend the fundamental rights.

In the case of Sajjan Singh v. the State of Rajasthan (1964), the 17th Constitutional Amendment Act, 1964 was challenged as it was restricting the powers of the High Court. Taking a reference from the aforementioned case, the Apex Court observed that the phrase ‘amendment of the Constitution’ under Article 368 meant amendment of any part of the Constitution including Fundamental Rights. The Court went ahead to observe that even if Article 368 was not vested with the power to amend the Fundamental Rights, the Parliamentarians could at any given time amend the same and include or exclude powers.

The 17th Constitutional Amendment Act, 1964 was once again challenged in the case of Golaknath v. State of Punjab (1967), where the question was whether the power of the Parliament to amend the Fundamental Rights was limited or unlimited by nature. An 11-judge bench of the Supreme Court observed that the amendment power was limited as it would be subjected to judicial review. The Apex Court went ahead to state that the Parliament did not have any power to amend the Fundamental Rights under Part III of the Constitution. Another important decision made in this case concerned the ambit of Article 13 (2). It stated that the term ‘law’ under the said provision included the word ‘amendment’ and therefore any amendment violating Fundamental Rights would be declared void.

With the majority of the parliamentarians disagreeing with the fact that the Parliament’s amendment powers were subjected to Article 13, the 24th Amendment Act, 1971 was introduced. The Act brought in three major changes:

Clause 4 was introduced in Article 13 which stated that nothing in Article 13 would apply to Article 368 of the Indian Constitution.
The marginal heading of Article 368 was changed from ‘Procedure for amending the Constitution’ to ‘Power of the Parliament to amend the Constitution and the procedure thereof ’.
Clause 3 was added to Article 368 which stated that nothing in Article 13 shall apply to Article 368.

The 24th Amendment Act, 1971 was challenged before the Supreme Court of India in the landmark case of Kesavananda Bharati v. State of Kerala (1973). The issue before the Court was to determine as to what was the scope of the amendment by the Parliament after the aforementioned Amendment Act. The Supreme Court provided a balanced judgment which is provided hereunder:

The power to amend the Constitution was already implicit in the Indian Constitution. It was the 24th Amendment Act, 1971 that made it merely explicit or declaratory. However, the basic features of the Constitution cannot be amended.
The Parliament can amend the entire Constitution to form a new Constitution altogether, however, the amending power needs to pass through the test of basic features. This test would behave as an implied restriction on the amending power of the Parliament.
The intention of the Constitution makers was not to use the term ‘amendment’ in its widest sense. They believed that the Fundamental Rights along with the fundamental features would always survive in a welfare State.

Some addition to the basic features along with the addition of clauses (4) and (5) to Article 368 was made by the case of Indira Gandhi v. Raj Narain (1975). The case ended the long alive controversy as to who was supreme; the Parliament or the Supreme Court of India, by stating that the Parliament was superior as it had been the ‘will of the people’. The theory of basic structure was termed as ambiguous by the top court.

Clauses (4) and (5) of Article 368 that were introduced by the 42nd Amendment Act, 1976 were challenged in the case of Minerva Mills v. Union of India (1980). Observing that the clauses contravened the basic features of the Constitution namely the limited power of the Parliament to amend and the principle of judicial review, the Supreme Court struck down the clauses by holding them as unconstitutional. After this case, it was finally settled that neither the Supreme Court nor the Parliament was supreme. Instead, it was the Constitution which has been the supreme law of the land.

The relevance of Doctrine of Basic Structure in the Indian Constitution

The Constitution of India, 1950 does not expressly mention the Doctrine of Basic Structure, instead, it is the judiciary that has coined the term that has immense relevance in the Indian Constitution. A judicial innovation to ensure that the Parliament’s amendment power is not misused, the Doctrine of Basic Structure upholds the basic features of the Constitution of India and ensures that the same should not be altered to an extent that the identity of the Constitution is lost in the process. The conflict between the legislature and the judiciary is laid to rest by the functioning of this doctrine. Why it should be considered as an important unwritten principle of the Constitution is because the Constitution promotes the effective functioning of the three organs of the Indian government thereby guaranteeing that although the organs are independently independent but not interdependently independent.

Judicial review

The principle of judicial review is based on the foundation that the judiciary has built the superstructure of control mechanism. Article 13 expressly incorporates this principle although does not mention the term to be specific. Article 13(2) of the Indian Constitution expressly provides that ‘The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void’. Not leaving scope for the judiciary to interpret, the Indian Constitution has included the unwritten principle of judicial review in its very spirit.

The Supreme Court of India while deciding the case of Indian Rly. Construction Co. Ltd v. Ajay Kumar (2003) observed that the current tendency in court rulings is to broaden the scope of judicial review of administrative activities and to limit judicial review immunity to a subset of actions, such as army deployment and signing international treaties.

In the case of Karnataka Bank Ltd. v. State of A.P. (2008), the Supreme Court had viewed that a court is primarily concerned with the legislature’s legislative competence, not its wisdom, and it will always defend the policy regardless of its own opinions. Therefore, the unwritten principle of judicial review does not create hindrance in the functioning of the different organs of the government, instead, it facilitates effective functioning of the organs. The Supreme Court of India had also clarified in the case of DDA v. Joint Action Committee (2008) that an administrative policy laid down by its rule-making power, or in the exercise of its executive power can be reviewed if:

1. It is unlawful;

2. It goes beyond the authority of the parent Act or regulation;

3. The delegate has gone outside the scope of his or her authority;

4. It goes against the statutory policy or a broader policy.

Scope of judicial review in the Supreme Court of India

The Supreme Court of India had observed in the landmark case of Kesavananda Bharati v. the State of Kerala (1973) that judicial review is not only an important feature of the Constitution but also a fundamental structure of the Constitution that cannot be repealed or reduced even by a constitutional amendment. Judicial review can therefore also be termed as an alternative to force and is founded on the fundamental concepts of the rule of law, separation of powers, federalism, and fundamental rights. Article 32 of the Indian Constitution invests the power of judicial review on the Supreme Court of India as clause (1) guarantees the right to approach the Supreme Court for the enforcement of fundamental rights and clause (2) vesting powers on the Apex Court to issue directions with respect to matters provided in clause (1).

While discussing the case of Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath and Sons (1992), the Supreme Court of India discussed the nature and purpose of the principle of judicial review. It was observed that the essence and goal of judicial review is to examine the decision-making process rather than the administrative authority’s decision. As a result, the Supreme Court cannot exercise appellate jurisdiction and reconsider the fact-finding authority’s primary or perspective facts.

Article 136 of the Constitution of India provides for special leave to appeal by the Supreme Court of India. This provision is in the nature of a residuary reserve power of judicial review in the area of public law. The aforementioned Article does not confer the right to appeal on any party but instead confers a discretionary power on the Apex Court to interfere in special cases with the intent to advance the cause of justice.

Scope of judicial review in the High Courts

Article 226 of the Indian Constitution lays down the room for the high courts to issue directions, writs or orders for the enforcement of the fundamental rights guaranteed under Part III of the Constitution along with any other purpose. The latter part ensures that the scope of judicial review will be comparatively wider while talking about the high courts with respect to the Supreme Court of India. The Apex Court while deciding the case of Kailash Chander Sharma v. the State of Haryana (1989) observed that the phrases ‘for any purpose’ under Article 226 allow the high courts to use their judicial review powers to enforce procedural legal rights that are not fundamental rights. While the high courts’ jurisdiction under Article 226 is required for the enforcement of fundamental rights mandatorily, it is optional for the enforcement of ordinary legal rights.

Article 227 gives high courts the authority to supervise administrative entities that have adjudicatory functions. This power is both administrative and judicial in character. The High Courts’ jurisdiction under Article 227 is revisional rather than appellate, hence it is restricted and restrictive by nature. As a result, the Article does not grant unrestricted authority to amend all erroneous rulings made within the jurisdiction of the lower courts and tribunals to that of the high courts.

Alongside being an important unwritten principle of the Indian Constitution, the principle of judicial review holds a significant place in administrative law. It is a judicial review that has given birth to several other doctrines such as the doctrine of public accountability, doctrine of proportionality which has been the pillars of administrative functions in the Indian territory.

The doctrine of Rule of law

The term “rule of law” should not be confused with the terms ‘rule’ or ‘law’. In any free and civil society, it is typically defined as a concept of ‘state political morality‘ that focuses on the rule of law in quest of a ‘proper balance’ between ‘rights’ and ‘powers,’ between people, and between persons and the State. A ‘law’ founded on freedom, justice, equality, and accountability may be used to strike this balance. As a result, the rule of law maintains a harmonious relationship between societal and individual requirements. Dicey’s theory of Rule of law has been embraced and clearly included in the Indian Constitution.

The Preamble of the Constitution enshrines the Constitution’s principles of justice, liberty, and equality (which is part of the Constitution). The Indian Constitution has been declared as the country’s supreme law and all other laws must be in accordance with it. Any statute determined to be in contravention of the Constitution, particularly the fundamental rights, is deemed null and invalid. The three principles of Dicey’s doctrine of rule of law have been discussed hereunder.

Democratic government vis a vis autocratic government

The first principle of rule of law formulated by Dicey provides that no government should be vested with arbitrary powers which will make room for misuse resulting in hampering liberty and freedom of the nation’s citizens. Part III of the Indian Constitution guarantees Fundamental Rights to the citizens of the nation and also provides them with the authority to approach the Supreme Court or the high courts whenever such rights are infringed or contravened by the State without any reasonable justification under Articles 32 and 226 respectively, with the former being a Fundamental Right in itself. In order to implement the doctrine of rule of law in a democracy like India, the supremacy of the government over the judiciary or vice versa cannot be encouraged. Therefore, it is the Constitution that acquires the position of supreme law of the land that maintains the equilibrium between the government’s power and the public’s interest.

Equal subjection of all persons to the ordinary law of the land

Articles 14 to 18 of the Indian Constitution deals with the Right to Equality. While Article 14 states that the State must not refuse any individual within India’s territory equality before the law or equal protection under the law, Article 15 states that the State shall not discriminate against any person solely on the basis of religion, race, caste, sex, birthplace, or any combination of these factors. In regards to employment under the State, Article 16 guarantees equality of opportunity to the Indian citizens only. Article 17 deals with the abolition of untouchability which has been a deep-rooted issue in Indian society for several decades now. Followed by this, Article 18 of the Constitution prohibits Indian citizens from accepting foreign titles. It is impossible to treat everyone equally in the workplace and therefore, equal treatment for equals is the sole definition of equality. All of the Fundamental Rights mentioned above are subjected to reasonable restrictions to be imposed by the State.

The Supreme Court of India has time and again relied on landmark cases like E.P Royappa v. State of Tamil Nadu & Another (1974) and Maneka Gandhi v. Union of India (1978) in which it had observed that Article 14 is one of the foundations of the Indian Constitution since it prohibits arbitrariness and so cannot be interpreted narrowly and inflexibly. As a result, Article 14 should be given the broadest possible meaning, which encompasses the rationality and arbitrariness of some legislative measures. Arbitrariness is prohibited under the rule of law, which pervades the whole structure of the Indian Constitution. There is a rejection of the rule of law whenever there is arbitrariness or unreasonableness.

Common law is the source of fundamental freedoms of the people

The two aforementioned principles of the doctrine of rule of law combine to form the third principle of rule of law as has been observed by Dicey. If the source of the people’s Fundamental Rights was any document, Dicey felt that the right may be revoked at any time by altering the Constitution. This was what happened in India during the 1975 Emergency when the Supreme Court ruled that even the government’s illegal acts could not be challenged in court because the source of personal liberty in India was found to be Article 21 of the Constitution, which had been suspended by the Presidential Proclamation, rather than any common law.

Article 14, Article 19, and Article 21 are all related under the Golden Triangle rule established by the infamous Maneka Gandhi v. Union of India (1978) case. They are complementary to one another and provide the most fundamental rights to Indian citizens and, in some situations, non-citizens of India. The Right to Equality, the Right to Basic Freedoms, and the Right to Life and Personal Liberty must all be read together and construed collectively. According to the Golden Triangle jurisprudence, if someone’s personal liberty has been infringed upon, it must satisfy the test of violating all three criteria to be classified as “infringement of personal liberty.” Thus the fact that common law is the source of fundamental freedoms of the people stands true.

Principles of Natural Justice

The Supreme Court of India while deciding the case of K.I. Shephard v. Union of India (1987) had observed that natural justice standards have evolved with the advancement of civilization, and their substance is frequently used as a gauge of the level of civilization and rule of law in a given community. Further, the Apex Court while hearing the case of Dharampal Satyapal Ltd. v. CCE (2015) held that natural justice is another term for common-sense justice, and it is founded on a person’s natural sense of right and wrong. The principles of natural justice can be narrowed down to two Latin maxims:

Nemo debet esse judex in propria causa (i.e. ‘no one should be made a judge in his own cause’ which is also popularly known as ‘Rule against Bias’); and
Audi alteram partem (i.e. ‘hear the other side’ which is also popularly known as ‘Rule of Fair Hearing’).

Natural justice concepts are deeply ingrained and protected in India by Articles 14 and 21 of the Indian Constitution. The main goal of these principles is to help prevent miscarriages of justice by protecting an individual’s rights. They also guarantee that decisions made by competent authorities are just, fair, and reasonable. With the inclusion of due process in Article 21 of the Constitution, fairness embodied in natural justice principles can be observed within Article 21 itself, when a person’s life and personal liberty are taken away. Reasonable constraints on the freedom to carry on trade and commerce, including procedural restrictions, can be imposed under Article 19 (2) to (6). The concepts of natural justice have been used by courts to determine the constitutionality of reasonable limits. Article 311 embodies the Right to Hearing as a basic principle of natural justice.

Relevance of the principle of natural justice

Although the principle of natural justice is not mentioned in the Indian Constitution, it is seen as a vital component of the administration of justice. In Hindustan Petroleum Corporation v. H.L. Trehan (1989), the Supreme Court said unequivocally that taking action without hearing would be arbitrary and would violate Article 14 of the Constitution, even if the authority had legislative right to do so, thereby establishing the principles of natural justice. The Apex Court held in D.K. Yadav v. J.M.A. Industries Ltd (1993), that even if statutory standing orders empowered management to terminate the services of an employee who overstayed the leave period, doing so without a hearing would be a violation of Article 21 of the Constitution because a procedure established by law that deprives a person of his livelihood cannot be said to be just, fair, and reasonable under the said Article.

The Court remarked in Asoka Smokeless Coal India (P) Ltd v. Union of India (2006) that natural justice principles are invoked when there is any right that is likely to be harmed by the conduct of the administration, including a genuine expectation. The judiciary has embraced natural justice principles to defend public rights against arbitrary decisions made by administrative bodies. The basic goal of natural justice principles is to prevent miscarriage of justice at all levels of the proceedings.

Independence of the judiciary and separation of powers

The rule of law is the core of our democracy as discussed previously, which means we need an independent judiciary composed of judges who can make decisions regardless of the political winds that are blowing. The other branches of the government, namely the executive and legislature, must not obstruct the judiciary’s ability to do justice to the common people of the nation.
Judges must be able to carry out their duties without fear of reprisal or favour. The primary aim of judicial independence is for judges to be free to settle a matter before them based on the law, without being affected by any other element. The Act of Settlement 1701 guaranteed judicial independence in India.
Though there is no clear provision in the Indian Constitution expressly mentioning judicial independence, the independence of the judiciary and the rule of law are fundamental characteristics of the Constitution that cannot be changed or abrogated, as the Hon’ble Supreme Court stated in S.P. Gupta v Union of India (1962).
In any country, conflicts will inevitably emerge between people, groups, and individuals or groups and the government. All such issues must be resolved by an independent authority following the rule of law premise. The concept of the rule of law means that all people, wealthy and poor, men and women, progressive and backward castes, are bound by the same set of rules.
The judiciary’s primary responsibility is to uphold the rule of law and preserve its supremacy. Individual rights are protected, disagreements are resolved according to the law, and democracy does not give way to individual or group rule. In order to effectively carry out such functions, the judiciary needs to be independent. This is the importance of this unwritten principle of the Indian Constitution.

However, judicial independence does not entail arbitrariness or lack of responsibility. The country’s democratic political framework includes the judiciary. As a result, it is responsible to the Indian Constitution, democratic traditions, and the people of the country. Although judicial independence is not a new notion, its definition remains ambiguous. The notion of separation of powers appears to be the concept’s beginning point and key point. As a result, it largely refers to the judiciary’s independence from the executive and legislative branches.

Article 50 and the concept of separation of powers

In our Constitution, there are no specific provisions establishing the doctrine of separation of powers. However, the Constitution has some directive principles, such as Parts IV and V, and Article 50, which separates the judiciary from the other organs of the government. Article 50 of the Indian Constitution provides that in the State’s public services, the State must take efforts to separate the judiciary from the executive.
The Supreme Court has the authority under Articles 142 and 145 of our Constitution to declare void legislation approved by the Legislature and Executive if they contradict any provision of the Constitution or a law passed by the Legislature in the event of Executive activities.
Even Parliament’s ability to modify the Constitution is subject to the Court’s review. If an amendment alters the fundamental structure of the Constitution, the Court has the authority to declare it void. The President of India, as the country’s supreme executive authority, has the power to make laws through ordinances under Article 123.
The President has judicial powers under Article 103(1) and Article 217(3), consult with the Supreme Court of India under Article 143 and pardon people under Article 72 of the Constitution. The Council of Ministers is made up of members of the Legislature, and it is in charge of the same. In situations of breach of privilege, impeachment of the President under Article 61, and removal of judges, the Legislature exercises judicial powers.
Under Article 105 (3), the legislative body has punitive powers as well. Thus what can be inferred from the above discussion is that, although the organs of the government are independently independent, they are interdependent upon each other for the execution of their functions.

Conclusion

As we scroll through the article, what one can infer is that every unwritten principle of the Indian Constitution is interlinked with each other. Not only do they work together for better administration of the democratic nation but also complement each other to avoid tensions within the nation. Thus although unwritten, these principles live and breathe in the very spirits of the Constitution.

References

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What is the position of an unregistered trademark under the Trade Marks Act,1999

By

Shoronya Banerjee

-

November 24, 2021

0

Trademark — Image source: https://rb.gy/btomka

This article has been written by Aishwarya Parameshwaran, pursuing the Diploma in Intellectual Property, Media, and Entertainment Laws from LawSikho. The article has been edited by Aatima Bhatia (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

The Trademarks Act, 1999 is the statutory legislation that comprehensively deals with trademarks in India. All marks, logos, symbols, or brands that are distinct and distinguish themselves from other goods and services are termed as ‘Trademarks’. As per the Trademarks Act, 1999, it is not mandatory to register trademarks in India. Many people who are not aware of the benefits of registering their trademark do not register their trademark. Many of them also think that it is a tedious process and neglect registration. Therefore, in India, there are multiple registered and unregistered trademarks.

What are unregistered trademarks and how is it different from registered trademarks?

Before we compare registered and unregistered trademarks, let’s first understand what are registered and unregistered trademarks and the legal recognition one gets after such registration.

Registered trademark

A trademark registered under the Trademark Act, 1999 confers exclusive rights upon the owner of such a registered trademark. Upon registration, his ownership over such a trademark becomes the prima facie evidence. Additionally, he gets to use such marks exclusively under the class of items it has been registered under. Once the trademark is registered, its validity remains for 10 years and further, the trademark needs to be renewed.

Suppose a third party uses a registered trademark illegitimately, then such use shall amount to trademark infringement. The owner of such registered trademark can institute a suit for infringement under the Trademarks Act, 1999. Such a suit for infringement can be civil or criminal.

Unregistered trademark

As we discussed previously, registration of a trademark is not mandatory as per the Act, so the trademarks that are not registered are called unregistered trademarks. It can be used with respect to goods and services. However, the protection that they get under law is very limited as compared to the legal protection given to registered trademarks.

Suppose if a third party makes illegitimate use of an unregistered trademark, it shall not amount to infringement of the trademark. Therefore, in such cases, a suit for infringement under the Trademark Act, 1999 cannot be initiated. The remedy available with the owner of an unregistered trademark is ‘Passing off’ under the law of torts.

A major concern in the cases of passing off is that it is essential to establish in the court that such an unregistered trademark has a reputation in the market and can be easily distinguished under the class of goods, business, or service for which it is used. Diagrammatic representation of the difference between registered and unregistered trademarks:

Sr No.	Basis	Registered trademark	Unregistered trademark

1	Meaning	When a symbol, sign, word etc is registered by its owner as the provisions given under the Trademark Act, 1999 then such mark is called a registered trademark.	When a symbol, sign, or word is used by the owner but not registered as per the provisions of the Trademark Act, 1999 then such a mark is called an unregistered trademark.
2	Protection under	Protection of registered trademarks is provided under Trademark Act, 1999.	Protection of unregistered trademarks is provided under common law.
3	Burden of proof	Once the mark is registered, the burden of proof of its early use on the opponent.	When the mark is not registered, the burden of proof of early use lies on the owner himself.
4	Remedy	A suit for infringement can be instituted.	Suits for passing off can be instituted.
5	Symbol	An owner of a registered trademark TM symbol upon application of registration. Once the mark gets registered, the owner can use the symbol, which signifies that the registration of the mark is complete as per the provisions of the Act.	The user of an unregistered trademark can use TM symbol but not symbol.

Protection of unregistered trademark under Trademark Act, 1999

Although unregistered trademark’s illegitimate use has a remedy in law in the name of passing off under the law of torts, it has very limited statutory protection under the Trademark Act, 1999.

Section 34 and Section 35 of the Trademark Act, 1999 gives statutory protection to unregistered trademarks. These sections safeguard the interest of an unregistered trademark by simply stating that a prior user of a trademark will get priority over subsequent users, despite being registered.

Therefore, even though the Trademark Act, 1999 does not provide any statutory remedy for illegitimate use of unregistered trademarks, it aims to protect the interests of a bonafide user of such mark on the basis of prior use. This section safeguards the interests of prior users and encourages them to continue their business without the fear of being sued for infringement of the mark by a subsequent registered user of an identical mark.

Protection of unregistered mark under common law

Previously, we already discussed how a remedy for illegitimate use of an unregistered mark is by way of passing it off under common law. Now, let’s understand what is passing off and how does common law protect the interests of an unregistered trademark user.

In the case of Perry v Truefitt (1842), it was decided that ‘One should not sell goods under the pretext that they are of another’ a principle upon which an action against passing off is based on. The intent of this law is that one should not misrepresent the item to be someone else’s. The reason is, a brand creates trust within its consumers and a lot goes into creating this brand value in the market. So, by simply using an identical trademark, one must not misrepresent the consumers it to be of another.

In simple words, passing off is nothing but an unfair trade practice through which one seeks to attract consumers and seek profits from the brand value created by another existing brand in the market. If it becomes evident that the defendant willingly wanted to deceive and mislead the general public, an action against passing off shall become successful.

Essentials of passing off

In order to take any action against passing off, it is necessary that the following essentials are met by the unregistered user of the trademark.

Good will

An unregistered trademark must have some goodwill and reputation in the market that means, people should recognise such a mark. When an action for passing off is instituted, the person instituting i.e. the owner of an unregistered trademark has the burden to prove that his mark has acquired a distinguished reputation in the market. Now, this market can mean at the local or international territorial level.

Prior use

Even if the first essential requirement is met, the unregistered trademark user cannot succeed in the action taken against passing off, the reason being Section 34 and 35 of the Trademark Act, 1999 makes it clear that a prior user of the trademark will get priority over subsequent users, although the subsequent might be registered. Thus, in order to protect one’s interests over an unregistered trademark, the user will have to prove that he had prior use over the mark and hence he is eligible for taking an action against passing off.

Damages

The party instituting an action against passing off needs to prove that such passing off by a third party has caused him actual damage in business and profit due to the misrepresentation. It is generally difficult to prove this requirement and requires the inspection of accounts of books.

Analysis

Even though the Trademark Act, 1999 along with common law remedies has provided an unregistered trademark owner with some rights and remedies, at the same time it burdens him. It may seem that action against passing off is sufficient protection to the unregistered trademark owner, but there are still the essentials that need to be met. If the owner fails to meet any one of the two essentials, then the remedy shall not be provided to him. A provision must be added in the Trademark Act, 1999 wherein, after determination of the passing off case by the court, the court should find the party responsible for passing off with penalties. This would create a deterrent effect on the party making false representation and shall refrain others from using such ill tactics of the trade.

Conclusion

Trademark is the identity of a brand and a product. One must be very conscious and aware of the rights arising from such a trademark. In order to enjoy the bundle of rights provided under the Trademarks Act, 1999 it is advisable that such a person registers his trademark. The reason, being although the Trademark Act, 1999 talks about unregistered marks, the rights of an owner of an unregistered trademark are very limited.

It is only due to common law which is nothing but judge-made law, that the unregistered user of trademark has at least the remedy of taking an action against passing off. And even to avail of this remedy, the user will have to prove that his use was significant along with the other essentials specified in this article.

It is only because of the absence of concrete provisions with respect to unregistered trademarks that the cases related to the subject matter are highly dependent on judicial decisions. So, unless a precedent is delivered by the Supreme Court or High Courts or an amendment in the Trademark Act, 1999, the laws pertaining to unregistered trade shall remain the same.

References

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Rule 267 of Rajya Sabha – why is it making recent headlines

By

Sneha Mahawar

-

November 24, 2021

0

rules-and-regulations — Image source - https://bit.ly/3BROTPM

This article is written by Ojasvi Gupta, a student of Law School, Banaras Hindu University, Varanasi. It investigates Rule 267 of the Rajya Sabha and throws light on why this single rule has been in the recent headlines.

Table of Contents

Introduction

The unique democratic setup of India is based primarily on institutional schemes provided by the Constitution of India and accompanying judicial developments. Along with these, there are provisions, however minor, which promote the concept of democracy in letter and spirit. Rule 267 of the Council of States is one such way by which the aim of a democratic, socialist and secular country is accounted for. Let’s see what this Rule is about and its relevance in the current scenario.

Rules of Rajya Sabha

The Rules of Procedure and Conduct of Business in the Rajya Sabha (Council of States) were adopted by the Upper House for regulating the general procedure carried therein on June 2, 1964, and these Rules have been effective from July 1, 1964, to the present. Till now, 9 editions of the Rules have been incorporated and include the amendments suggested by the Committee of Rules and implemented by the House.

These Rules are formulated under Article 118 (1) of the Indian Constitution. This provision empowers each House of the Parliament to make rules for effectively regulating its conduct of business. The importance of these Rules does not end with helping in the proper functioning of the House. They define the numerous parliamentary terms, mode of election of Deputy Chairman, the format of discussions on bills, and the constitution and functions of Committees involved. Similar to most of the Rules, they are essential for providing effective structure to the functions of the legislative house.

What is Rule 267

Rule 267 is used in situations when the members want to raise urgent issues and are unable to do so through the general procedures. Usually, a discussion on a matter of public interest is taken up by the House on a motion consented to by the Chairman through Rules 167-174. Our leaders envisaged a way to ensure that pressing matters are voiced out, especially in cases the urgency of the issue doesn’t allow for the delay that discussing it would make. Rule 267 of the Rules of Procedures and Conduct of Business in the Council of States provides for raising urgent issues of public importance by suspending the normal operation of Rules.

It states that the business of the day can be set aside to take up a discussion that is critical at the moment. Utilizing this provision any member of the House can move a motion for suspending any Rule in its application related to the business listed before the House for that day after the Chairman consents to such a proposal. Only the Chairman, i.e. the Vice President has the power to allow the motion for suspension of Rules, and the House decides whether a particular rule should be suspended or not.

To raise a motion under this Rule, the concerned Member must give notice to the Secretary-General of the House before 10 a.m. on the day on which suspension of business is sought. This notice includes the matter of public importance which needs to be raised because of its urgent nature and must be submitted after the last sitting day has been adjourned.

Such a provision is capable of drawing the attention of the government as well as the public to an issue that is integral to the society and the state but its urgent nature does not allow it to be dealt with in the usual and proper way of resolutions. If and when the Chairman approves this motion, the member introduces it with a brief statement emphasizing its critical nature, and the motion is put to vote. The majority voting determines whether the motion will be adopted and the listed business would be suspended for the day or it will be rejected.

Exception to Rule 267

The proviso to the Rule states that it can only be applied in situations where particular provisions for suspending the Rules under a certain Chapter are not mentioned. Thus, applications of this Rule are limited to generic instances.

Lok Sabha procedure similar to Rule 267

Parallel to Rule 267 of the Upper House is the adjournment motion of the Lok Sabha or the Lower House. Adjournment Motions of the Lok Sabha are governed by Rules 56—63 of the Rules of Procedure and Conduct of Business in Lok Sabha and Direction 2 (vi) of Directions by the Speaker. Adjournment Motion provides for a discussion on an urgent matter of public importance in the Lok Sabha by setting aside the normal business. This motion can be raised after the Speaker consents to it, depending upon the urgency of the matter.

Rule 388 in the Lok Sabha manual also provides for a motion for suspension of rules with the consent of the Speaker, however, to register its censure of the Union government, Lok Sabha MPs normally take recourse to the adjournment motion. The last adjournment motion was made in August 2015 regarding the alleged role of then Foreign Minister Sushma Swaraj in getting travel papers for Lalit Modi, a fugitive whose passport had been revoked.

How has Rule 267 gained attention

This prerogative of the opposition has been gaining attention in the media due to increasing attempts by the members to raise various issues in the recent past. Many of the members have stated outside the Parliament about their futile attempts at raising issues that the current government does not want to highlight or discuss. The Chairperson of the Rajya Sabha has received 10-15 notices for this Rule, to discuss agrarian, pegasus, Mizoram border issues and such in the last session, with none of them getting approval to be discussed.

The Parliament as a temple of democracy is a place where leaders are supposed to rise above party politics and discuss the issues that warrant their attention as legislators but the recent disruptions in the Parliament have not been able to achieve that goal. Protests by opposition members pressing for a discussion on the alleged use of Pegasus spyware by the central government and farmers’ agitation against agriculture reform laws have repeatedly disrupted proceedings in Rajya Sabha. Chairman M. Venkaiah Naidu reasoned that he has not accepted the notices given by various opposition party members under Rule 267 for suspension of the business to allow discussion on their respective issues as the Rule has rare use only. He had stated, in as early as March this year, that this often cited Rule by opposition members, should be used on rare occasions only, otherwise, the House won’t be able to function. He compared it to a ‘Brahmastra’ as opposed to other ‘astras’ or regular weapons and said that it must be invoked in extreme situations which are of a pressing nature.

Among a dozen of the members who had given notices under this Rule was Sukhendu Sekhar Ray of the Trinamool Congress who complained that no notice under Rule 267 has been accepted since November 2016, a period of 5 years while trying to discuss and debate on a matter that could be violating the Right to Privacy of the individuals at large. Congress MP KC Venugopal had given a notice under Rule 267 in Rajya Sabha to suspend the business and discuss the rise in the price of fuel, a burning topic nowadays, and other essential commodities. Dr. V Sivadasan and Elamaram Kareem of the Communist Party of India had also given a suspension of business notice under Rule 267 to give an adequate platform for discussing the farmers’ protest. Tiruchi Siva, MP from Dravidian Progressive Federation, DMK attempted to suspend the rules by giving the notice to discuss the Mekedatu Dam issue in the Upper House. Some other members’ names who have put in their notices unsuccessfully are Ravi Prakash Verma, Rajeev Gowda, and TK Rangarajan.

Notices under Rule 267 in the past

Although the frequency of requests to invoke this Rule has increased lately, the denial to grant such requests is not a new thing and has happened in the past as well. These requests are usually not accepted by the Chairman with few exceptions as evident in 2015 and 2016. The current Vice President has not allowed any discussion to be taken up by the members through Rule 267 since 2017, the year he chaired the House.

The last time motion under this Rule was granted by the former Vice President Hamid Ansari, it was for a discussion in November 2016 – the issue in question being demonetization. Before that, the issue was related to the need for agricultural reforms. If one bothers to count the rejected notices under his chairmanship, the list goes in hundreds with topics like GST, Rafale deal, Kashmir issue, being included several times. More specific issues include engineered defections to dislodge elected state governments, violence against medical professionals in hospitals and clinics.

Since the acceptance or rejection depends entirely on the Chairman’s discretion, there’s nothing else a member can do. Sometimes, it is obvious that the topic of the issue raised is just a political agenda rather than a sincere concern. For example, once an MP from Shiv Sena gave notice over the delayed production of the Vande Bharat Express train.

Conclusion

Ultimately, the main reason why this Rule has been attracting the attention of the political world is the gap of five years in its invocation. This was bound to raise some eyebrows as in the last years there had been various socio-political issues that have a significant impact on the country or a community, especially the problems during the pandemic. Following the rarest of the rare rule would render the implication of this Rule pretty unsatisfactory.

Meanwhile, the proper functioning of the House demands that not every notice be taken into consideration. It is for this reason that former Chairman P J Kurien has stated the need for a regulatory clause within the Rule itself. According to a source, the rules review committee set up by the Chairman has recommended in its interim report to amend Rule 267. From time to time, there have been instances that show inadequaṭe use of the above-mentioned Rule. In 2004, the ruling party had raised a motion under Rule 267 to suspend the question hour provided by Rule 38. Fali S. Nariman, then a member, had opposed the motion stating that the suspension of the important business of Question Hour is an attempt to prevent this House from functioning. The Rajya Sabha has been facing disruptions for quite a time now, and future use of this Rule, if unamended, may not be in the best interest of Indian democracy.

References

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

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

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The origin and myths about status of Article 370

By

Sneha Mahawar

-

November 24, 2021

0

Article 370 — Image source - https://bit.ly/36TGY5M

This article is written by Nishka Kamath, a student at Nalanda Law College, University of Mumbai. This article aims to provide facts for the general misconceptions, misunderstandings, and myths about the so-called ‘special status’ of Article 370. Also, a brief history of the now-defunct Article 370 and why and how it originated in the first place is discussed.

Table of Contents

Introduction

In August 2021, the former Chief Minister of Jammu and Kashmir (J&K) and the leader of the People’s Democratic Party (PDP) – Mehbooba Mufti urged the centre to learn a lesson from Afghanistan, where the Taliban seized power and made the US flee; and prompted the government to hold a dialogue in J&K, and thus, return its ‘special status’, which was withdrawn in 2019.

There are common misconceptions about the status of Article 370. These misconceptions are permeated or spread all over India, including in Jammu and Kashmir. Article 370 does not confer “special status” to J&K. It is a provision that only recognizes the special status conferred outside the Constitution of India. Similarly, there are numerous myths linked with Article 370. To get a better idea, we first have to know what Article 370 and this so-called special status is all about and then proceed toward the myths.

What is Article 370

Article 370 of the Indian Constitution gives autonomous status to the state of J&K. It means it has the status of an independent state. This Article is conferred in Part XXI of the Constitution: Temporary, Transitional and Special Provisions. After the establishment of J&K, the Constituent Assembly of J&K was authorized to recommend the articles of the Indian Constitution that should be applicable to the states or to repeal Article 370 altogether.

It is noteworthy that after Article 370 became non-operational, the whole nation will follow the slogan of one nation, one flag, and one Constitution.

What is a special status

If all the provisions of a Union do not apply to that state, then the State can be termed to have a special status. The provisions can vary according to the states. Article 370 (1) of the Constitution of India grants special status to the state of Jammu and Kashmir. Whereas, Article 371 grants special status to 10 other states, which are-

Maharashtra and Gujarat (Article 371),
Nagaland (Article 371A, 13th Amendment Act, 1962),
Assam (Article 371B, 22nd Amendment Act, 1969),
Manipur (Article 371C, 27th Amendment Act, 1971),
Andhra Pradesh and Telangana (Article 371D, 32nd Amendment, 1973), substituted by Andhra Pradesh (Article 371E),
Sikkim (Article 371F, 36th Amendment Act, 1975),
Mizoram (Artic l e 371G, 53rd Amendment Act, 1986),
Arunachal Pradesh (Article 371H, 55th Amendment Act, 1986),
Goa (Article 371I, 57th Amendment, 1987),
Karnataka (Article 371J, 118th Amendment Act, 2012).

The provisions in Articles 371, 371A-H and 371J portray that the other princely states also negotiated the terms and conditions of their entry into the Union or sought special constitutional protections based on their unique needs and conditions.

Interesting fact: Article 370 and 371 were incorporated in the Constitution of India since its commencement i.e. from 26th January 1950. Although, Articles 371A-H and Article 371J, were added through amendments under Article 368 which deals with the authority of Parliament to amend the Constitution and procedure by way of addition, variation or by repealing any provision in compliance with the procedure laid down in the article.

The special status of J&K

Firstly, the special status consists of recognizing the additional legislative autonomy in J&K under lists I, II and III. There are 97 entries in List I, the last one being that of a ‘Residuary Entry’. In the case of Jammu and Kashmir, the legislative powers were given to the Parliament only in relation to the entries 1-96 of List I of the 7th Schedule to the Constitution of India. The ‘Residuary entry’ went to the state of J&K which could only enact laws for all those remaining subjects under 97 of List I, as well as those included in List II and List III (the State and the Concurrent list). In simple words, the legislative power of J&K only excluded entries 1-96 of List I which was much broader than any other State.

Secondly, the Constitution of India recognised and accepted that J&K will have its Constitution to govern local governance in the State and its relations with Parliament. The Constitution would establish a Legislature and Executive with their expansive powers. No provision of the Constitution of India as applicable to the State of J&K including Article 352, 353, 354, 355, and 356, as there were separate provisions for every future event possible in the Constitution of J&K. The Legislative and Executive powers of the Union related to J&K, as aforementioned, is also governed by the Constitution of J&K and not by the Constitution of India, as opposed to that of other States.

Thus, this was the essence of the distinctive ‘special status’ of J&K in contradiction to other states.

How is the special status of Jammu & Kashmir conferred

The special status is not conferred by the Constitution of India, much less by Article 370. The Constitution of J&K is independent of it. To understand the advancement of this status, we would need to refer to history. Let us look at the history of how and why the special status of Article 370 was granted.

History and background of the status of Article 370

The short take

Initially, the Instrument of Accession (IOA) and later the first draft of Article 370 gave the Parliament of India the authority to have legislation only in matters related to Defence, External Affairs and Communications for the state of J&K.

Since then, Article 370 has been amended at least 12 times and has been used at least 45 times for extending the provisions of the Indian Constitution to the state of J&K.

By 1954, almost the whole Constitution was extended to the state of J&K, including most of the Constitutional Amendments. By the time the law was suspended, 94 of 97 entries in the Union List were applicable to J&K; 26 out of 47 items in the Concurrent List were extended; 260 of 395 Articles were applicable to the state, along with 7 out of 12 Schedules.

Later in August 2019, Article 370 became defunct via an amendment. And with this amendment, the reference to the Constituent Assembly in Article 370(3) has been replaced by the Legislative Assembly. This now authorizes the President to rescind the provision with the agreement of the Legislative Assembly of J&K.

The long take : A detailed timeline

Pre-Independence India

The modern form of J&K has been obtained under King Ranjit Singh, who formed a Sikh federation and annexed Kashmir to the Mughal Empire and then extended the region by taking into possession Ladakh and Baltistan in the early 19th century. But the King was compelled to sign a treaty that was formalised in 1846, after the first Anglo-Sikh war. This coerced him into surrendering the region to the East India Company.

After a week, the Britishers handed over the region to a Dogra general named Gulab Singh, who was first appointed by King Ranjit Singh, under the Treaty of Amritsar. Under this agreement, Gulab Singh was permitted to rule the regions of Jammu, Kashmir Valley, Gilgit-Baltistan and Ladakh, whereas the Britishers annexed almost all the remaining parts of the subcontinent. This is how a Dogra ruler became the ruler of a Muslim-majority region.

1947

In the year that India became independent, the matters of Jammu & Kashmir’s fate came up for discussion, again. The merger of the states after independence was to take place as per the Indian Independence Act, 1947. All the states, whether princely or not, were given an option to sign an Instrument of Accession for integrating the states democratically. The then ruler Hari Singh, who had full powers in his state, had an option to merge and sign the instrument but he persevered on handling the state independently i.e. without any intercession from India or Pakistan, thus maintaining the status quo.

However, the valley got attacked by an army of Pakistan soldiers, leaving Hari Singh with no option but to seek assistance from India. He received such assistance under a precondition that he must sign the Instrument of Accession. Meanwhile, the Dogra ruler faces challenges from Muslim leaders including Sheikh Abdullah who blamed him for treating Muslims unfairly under the Hindu law.

Thus, the Rajah, who had all the powers vested in him, negotiated for greater autonomy to J&K and a separate Constitution. The powers in the Union were limited only to foreign affairs, telecommunications, defence, and some ancillary subjects. The rest of the powers rested with J&K by virtue of conventions and agreements.

1948

The India-Pakistan attacks that started because of J&K’s accession with India, were obstructed due to harsh winters. The then Prime Minister took this opportunity to bring this matter to the United Nations and sue Pakistan for throwing the peace of the nation (India) into disarray. The UN ordered a temporary suspension of such a fight and passed a resolution calling for a referendum for the people of J&K to decide whether to become a part of India or Pakistan.

1949

In the meantime, Sheikh Abdullah was very much popular in the Muslim-majority state which is why the then Prime Minister Jawaharlal Nehru reached out to him for a deal. Sheikh Abdullah responded to the deal in affirmation considering the unquestioned power he would enjoy, along with New Delhi’s protection. This is how Article 370 was incorporated in the constitution exempting the state of J&K from the Constitution of India. This cements the terms spelt out in the Instrument of Accession signed by Maharaja Hari Singh.

1951

With the elections for the Constituent Assembly being held, Abdullah was appointed as the Prime Minister of Jammu and Kashmir. But once he was in power, he tried to focus more on his personal agenda which irked New Delhi, and thus, he was dismissed and imprisoned later in 1953. Instead of him, Ghulam Muhammad Bakshi was elected with a unanimous vote of confidence from the Constituent Assembly.

1952

In order to clarify the State’s relationship with New Delhi, an agreement was negotiated which extended Indian citizenship to the residents of the State. However, this agreement retained the original privileges enshrined by the Maharaja. But this agreement known as the Delhi Agreement had no constitutional significance.

Moreover, by an elaborate order in 1952, the Rajah of J&K had ordained the drafting of the Constitution by his own Constituent Assembly. The Assembly debated the provisions of the Constitution in full synchronicity with the Indian Government at every stage.

1953

Post the negotiations of the Delhi Agreement, most of the governance sharing issues were settled, and the Constituent Assembly of J&K approved the outcome by a resolution. The J&K Government provided all the details to the Government of India.

1954

This was a milestone in the history of the State. The Constituent Assembly of J&K gave formal approval to the State’s accession to India. The Parliament thereafter sanctioned it and as a result, the Presidential Order was issued in 1954. This Order acknowledged that the legislative powers of the Parliament, unlike that of other states, would be limited to entries 1-96 of the List I of the Seventh Schedule only. The Concurrent list along with the residuary entry 97 in List I were excluded in relation to Parliament so far as J&K was concerned.

Furthermore, this Order expanded the jurisdiction of the Center to include all subjects on the Union list of powers and gave the Governor the ultimate power to interpret the Constitution of J&K in relation to Indian laws instead of the Council of Ministers. The Order also laid down the cornerstone on the applicability of the other provisions of the Indian Constitution to J&K and gave legal recognition to the Delhi Agreement.

In the meantime, Article 35A was ushered in to empower the State legislature to make special provisions for permanent residents of the State. This included the infamous ‘special rights’ for citizens such as laws pertaining to the inheritance of property, a ban on the sale of land to outsiders, etc.

But a note must be taken that the (now deleted) Presidential Order of 1954 that added Article 35A to the Constitution of India extended Indian citizenship to permanent residents of J&K, Supreme Court’s jurisdiction to the State, and also abolished the custom duty of the State. Another important thing that has to be considered is that the Constitution of India did not have any provision for repealing or amending the J&K Constitution, and neither did the J&K Constitution allow the state to revoke this status under its amendatory powers under Section 147 of its Constitution.

In summary, since the 1954 Order, more than 40 succeeding Presidential Orders have been issued by successive governments for implementing several sections of the Constitution of India. This, in a sense, points out the erosion of the special status of J&K and supports Nehru’s often quoted comment “It will fade away with time (Ye ghiste ghiste ghis jaega)” with respect to Article 370.

Such was the independence of the J&K Constitution and the nature of its ‘special status’ enshrined and recognized in both the Constitutions.

2019

On 5th August 2019, the President of India issued a Constitution Order no. 272 in accordance with Article 370 (1) of the Indian Constitution. It stated that all the provisions of the Constitution as amended from time to time, without any changes or differences shall be made applicable to J&K. Further, as the government could not directly rely on Article 370 (3) to abrogate other articles, it sought to use the power enshrined under Article 370 (1) to amend Article 367. The next day i.e. on 6th August 2019, vide a Constitutional Order no. 273 all the powers under Article 370 were declared as non-operative and were replaced with a new paragraph where all the provisions of the Constitution of India were made applicable to J&K without any alterations. The matter of morality and legality of Article 370 has sparked several debates of intense nature. To date, this issue remains sub-judice in the Supreme Court of India.

Significance of Article 370

Article 370 has granted the State of J&K a certain amount of autonomy- an individual Constitution, a separate flag, and the liberty to enact laws. Whereas there were three matters which remained in the preserve of the Central Government, they were:

Foreign Affairs,
Defence, and
Communications, etc.

As a result of this, Jammu and Kashmir could establish their own rules related to:

Permanent residence,
Ownership of the property, and
Fundamental rights.

It could also prevent the Indians who hail from outside the state of J&K from purchasing property or settling there. The constitutional provision has often formed the basis for India’s strained relationship with Kashmir, the only region of the Muslim-majority to join India at partition.

Common misconceptions associated with Article 370

The most discussed topics also generate the most misconceptions. So is the same in the case of J&K having a separate special status and Article 370. Unfortunately, most of what people think they know about J&K and Article 370 are just unsubstantiated claims. Over the years, various myths have been propagated revolving around the Constitutional relationship between J&K and India. Here are some of the most common myths and the truth behind them.

Article 370 has been scrapped

No, this is absolutely untrue. President Ram Nath Kovind proclaimed that the Constitution (Application to Jammu and Kashmir) Order, 2019, which talks about the provisions of the Indian Constitution is applicable in the State. But, this deprives it of its autonomous status. Nonetheless, Article 370 still remains valid. In fact, the residential order exercises the powers conferred by clause (1) of Article 370 of the Constitution. So far, the Parliament of J&K had only residuary powers of legislation such as anti-terrorism laws, taxation or domestic and international travel, and communication. Currently, every law passed by the Parliament is applicable to J&K and Ladakh.

The special status is only for J&K – one cannot purchase land only in J&K

As stated above, during Independence, several other states were given special powers along with J&K. While J&K has Article 370, there is Article 371 for states like Maharashtra and Gujarat, Assam, Nagaland, Manipur, Andhra Pradesh and Telangana, Sikkim, Mizoram, Arunachal Pradesh, Goa and Karnataka.

Among the main provisions, the provisions for ownership of land, the Governor’s role, etc. have been included, except for the state of Goa and Andhra Pradesh. There are laws in other states as well that prevent non-domiciliary persons from owning land. For instance, the state of Himachal Pradesh under its own Himachal Pradesh Tenancy and Land Reforms Act, 1972 prevents all the non-residents from owning land there. Moreover, in the state of Karnataka, only an agriculturist can purchase agricultural land.

So, it is not as if J&K has something unique. Most of the states that have such special laws preserve local customs and cultures or prevent land alienation. They do so because they have a special history and demographic composition (for example, the tribal population) which calls for sensitive handling and assurances about the rights of the residents there. The same was the case with J&K. Thus, it is due to the state’s social and territorial situation, that a non-resident of these states cannot purchase land here.

Article 370 was termed to be temporary

When the Constitution was implemented, the framers were well aware that it would be a permanent futuristic structure because they themselves enacted it. Similarly, there was no doubt about the permanence of the Constitution of J&K.

But now a question might arise as to why Article 370 was termed ‘temporary’. Ordinarily, every provision of the Constitution is temporary until it is amended or removed. Moreover, there are a few methods prescribed under which some provisions would come to an end on their own. Article 370 prescribes one such method. But, there is nothing in the Constitution of India which states how or when the Constitution of J&K would come to an end. It is in this context that we must assess why Section 370 has been deliberately designated as a ‘temporary’.

J&K had recognized and accepted the need for an independent Constitution which meant there were two separate methods of mechanisms that governed the internal governance of the state, as well as the Centre-State legislative relations, could no longer be favoured. This would have led to a lot of conflicts and disasters. Thus, if the Constitution of J&K was enacted with the consent of everyone, then the temporary Section 370 mechanism would have to die its own death after its enactment. Also, the status did not have a specified time period because the Constitution was to be enacted by the Constitution Assembly of J&K in the near but indefinite future.

In short, Article 370 was developed solely to allow governance and regulate relations between the centre and the states in the interregnum. A careful analysis of article 370 will also confirm this.

The State of J&K cannot enact separate laws

The above claim is false. The Presidential Order only annihilates the need to pass every Indian law again in the J&K Assembly. However, the Assembly can pass bills and when such bills get an approval of the LT. Governor of the Union Territory, it will become a law. Similar to other States, the J&K Assembly can overrule a Central law by amending it, subject to approval. For instance, Puducherry, for allowing the bullfighting sport Jalikattu in its region, amended the Prevention of Cruelty to Animals Act, 1960.

There is dual citizenship for Kashmiris, and thus, they can visit Pakistan

This claim is misleading. Kashmiris is a term used for the ethnic group native to the Kashmir Valley. For years, this ethnic group of Kashmiris have migrated to different parts of the world, including Pakistan. India does not permit dual citizenship, for anyone, including Indian Kashmiris.

The ‘dual citizenship’ of the Kashmiri people is with reference to Article 370 under which they are termed to be citizens of India as well as citizens of Kashmir. A non-Kashmiri who lives in Kashmir is referred to as a citizen of India and the J&K Constitution will refer to them as ‘permanent residents’.

As far as visiting Pakistan is concerned, any Indian citizen who has a valid visa can visit the country.

Article 370 refutes a Kashmiri woman the right to own land if she marries someone outside the state

Even though Bills for denying the rights of Kashmiri women were introduced in the Assembly of J&K, none of them was passed to become an Act. In the case of State of J&K v. Susheela Sawhney (2002), an interesting question arose i.e. ‘Whether a daughter of a permanent resident of the state of Jammu and Kashmir who marries a non-permanent resident will lose her status as a permanent resident of the state of J&K for inheriting and acquiring immovable property?’ The High Court of Jammu and Kashmir held that a woman will not lose her permanent status by marrying an outsider or a person who is not a permanent resident of the state of J&K.

Pakistani boy marrying a girl belonging to J&K will get the citizenship of the State

There is a common myth that if a boy from Pakistan gets married to a girl from J&K, he will receive the citizenship of the state of J&K. But the fact is that Article 35A clearly states that a husband, who is of a non-Kashmir domicile, won’t get any rights in the State if he marries a Kashmiri woman.

Indian laws like CBI, CAG do not apply to J&K

It is a common myth that laws like CBI (Central Bureau of Investigation) and CAG (Comptroller and Auditor General) do not apply to the state of Jammu & Kashmir. But the truth is that several Indian laws including CBI and CAG have been operational in Jammu and Kashmir for decades.

The Indian Parliament cannot expand or reduce the borders of the State

It is with the assistance of the Jammu and Kashmir legislature that the Parliament of India could expand or reduce the borders of the State. The reason behind this is that the Article says that the ‘concurrence’ of the state government is compulsory for extending a central law of subjects.

Article 370 autonomy led to the alienation of Kashmiri people from India

It is oftentimes argued that Article 370 is the major factor for the spread of terrorism. Also, Article 370 is the basis of sentimental belief in a separate Kashmir, providing ground for cross-border terrorists to exploit. The bitter truth is that this increased disenchantment of the Kashmiri people is due to the erosion of Article 370, both in letter and in spirit. Article 370 provided for the extension of the law to J&K through Presidential Orders which was issued after the approval of the State Assembly. As stated in the aforementioned texts, 94 out of 97 entries in the Union List were made applicable to the state, and out of the 47 entries in the Concurrent List, 26 were expanded to the state. This severely reduced the powers of the J&K State Government. In toto, the provisions of Article 370 were used at least 45 times for extending the provisions of the Constitution to the state of J&K.

Thus, not only were the rights of the state restricted but also the spirit of the Article was violated simply because the state government approved such extensions. However, this does not mean that there must be no extensions, but there should be a limit to it. Not only this but the Constitution of India has been amended several times using Article 370. For instance, Article 249 (power of the Parliament to enact laws on State List entries) of the Constitution of India was extended to J&K without passing an Assembly resolution but on the recommendation of the Governor. Moreover, the President’s rule has also been extended using Article 370.

Many of these actions were used in the past to control and manipulate the state policies, that is, to establish ministries or impose President’s Rule.

How can Article 370 and 35A be a condition precedent to a merger if they came into force years later after J&K’s integration

The integration of J&K happened in October 1947, whereas, Article 370 and Article 35A came into force in 1952 and 1954, which is four and seven years after the integration.

The IOA (Instrument of Accession) was signed by Raja Hari Singh on 26th October 1947, but several things were left to be dealt with. These were to be settled through the negotiations in the coming years. As there were attacks by the Pakistani forces and tribal militias, Raja Hari Singh had no option but to seek assistance from India. This assistance came with a precondition that the IOA must be signed up by him. This compelled him to sign this Instrument with India, as opposed to his previous decision of handling the state independently.

After he signed the Instrument, discussions on how to implement laws and governance mechanisms had started. Meanwhile, for conserving the spirit of the IOA, Article 370 was moved in India’s Constituent Assembly in May 1949 and was passed in October 1949 to become part of the Constitution of India. Whereas, in 1950, 1 9 52 and 1954 the President passed Orders to settle various issues

As far as Article 35A is concerned, the then ruler-Raja Hari Singh had passed an Order in 1927 stating that only the residents of the state have the right to own land and the right to work in government offices. Thereafter, this Order was added to the Constitution of J&K by the state’s Constituent Assembly. The IOA had a clause that insisted that only those matters of the Constitution of India that were permitted would extend to J&K, the rights of state subjects also had to be conserved. This was all done via the Presidential Order of 1954 which inserted Article 35A.

Interesting fact: After Raja sought assistance from India, the Indian troops rushed to Srinagar which led to war. This war went on till 1949 i.e. for almost 2 years.

Development was not possible because Article 370 restricted it

When Article 370 was made non-operative, it was asserted that such a decision was taken to help the people of J&K the most. With such a step, more investment, more private industry educational institutions, more jobs and more revenue would be generated for the state. It is claimed to be one of the most absurd myths of all times created by the government.

The reason behind this is that Article 370 does not deter any government from providing or facilitating more investment and industry in J&K. Moreover, almost all the provisions of the Constitution, including the Union list and concurrent lists, were extended to the state. Most of the laws were also extended to the state of J&K. So, the Union governments could have easily undertaken any monetary measures or schemes/programmes if they wanted to in J&K.

It is often argued that such a step was not taken in the interests of the residents of J&K, but for gaining control over the land and resources of the valley for commercial exploitation. This amounts to the annihilation of the cultural identity of Kashmir.

SC/ST reservation will benefit greatly from the abrogation of Article 370

Several political leaders have claimed that since Article 370 is now abrogated, there can be reservations for SC and ST people. This is a blatant lie made by curbing the fact that there have been reservations for these communities for decades.

The J&K Reservation Act of 2004 provided reservation in direct recruitment to government services as also in promotion and professional institutions including MBBS for Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes (which includes residents of backward areas, actual line of control and weak and underprivileged class), Ex-servicemen and Physically challenged persons. 13 castes were designated as SCs under the Constitution (Jammu and Kashmir) Scheduled Castes Order, 1956, while 12 communities were notified as STs under the Constitution (Jammu and Kashmir) Scheduled Castes Order, 1989.

RTI was not applicable in Kashmir due to its special status

J&K had a Right to Information Act since 2004, a year before the Central RTI Act came into existence. However, the State did not approve the Central legislation for a long time. In 2007, the State Act was amended on the guidelines of the Central Act.

Integration of J&K is due to any specific provision of the Constitution

Another aspect that needs to be understood is that the integration of J&K in the Union of India under Article 1 is not because of any provision of the Constitution of India, but it is due to the Instrument of Accession that such integration took place. It took place under the Indian Independence Act of 1947. It is equally integrated into the Union under the Constitution of J&K which openly recognizes and proclaims “integration”. With the J&K Constitution becoming non-operational, the solemn commitment of the J&K people to integrate with India has also been lifted.

Conclusion

The most discussed topics are the most misleading. The same applies to the state of Jammu & Kashmir. Sadly, most of what people think they know about Jammu & Kashmir and Article 370 are just unfounded claims. Many myths have been disseminated over the years about the Constitutional relationship between Jammu & Kashmir and India.

But care must be taken that misconceptions from the actual reality must be comprehended. Moreover, one must not be credulous or believe in any myths without verifying their validity and the same applies to the misconceptions related to the now-defunct Article 370.

References

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Arbitration of patent disputes as a solution to India’s Patent Law challenges

By

Abanti Bose

-

November 24, 2021

0

Emergency-Awards-passed-in-Foreign-seated-Arbitration-Enforceable-or-not — Image source: https://bit.ly/362mklH

This‌ ‌article‌ ‌is‌ ‌written‌ ‌by‌ ‌Saloni Chitlangia,‌ ‌pursuing‌ ‌‌Diploma‌ ‌in‌ ‌Intellectual‌ ‌Property,‌ ‌Media‌ ‌and‌ ‌Entertainment‌ ‌Laws‌ ‌from‌ ‌LawSikho‌.‌ ‌The‌ ‌article‌ ‌has‌ ‌been‌ ‌edited‌ ‌by‌ ‌Aatima Bhatia ‌(Associate,‌ ‌LawSikho) and Ruchika Mohapatra ‌(Associate,‌ ‌LawSikho).‌

Table of Contents

Introduction

In a developing country like India, the focus on the importance of Intellectual Property Rights (hereafter referred to as IPR) has been increasing over the years. A patent is one such IPR that has come into focus with increased scientific and technological development. Patent disputes are not limited to the same country and are seen to often involve parties based in different countries as a result of international collaborative research work. Seeking remedies for such disputes from state-run courts prove to be an arduous task as simultaneous proceedings running in different jurisdictions apply varying procedural and substantive laws to the same dispute. Cases keep piling before the courts, often taking decades to be resolved. It is here where a need arises for an alternative to the conventional court proceedings-namely, arbitration. In recent times, arbitration has been used to settle different kinds of controversies. Globally there has been a transition towards arbitration of IPR matters. It is to be seen whether arbitration can serve as a solution to the current patent law challenge of the meandering pace of the judicial mechanism in dispute resolution. This requires a study of the International perspective, Indian legislative background, judicial perspective as well as a comparative study between arbitral procedure and litigation.

Evolution of arbitration in India

The history of arbitration in India dates back to the times of ‘Brihadaranyaka Upanishad’ which mentioned a system of dispute resolution which we now refer to as ‘arbitration’. It talked about primarily 3 bodies namely; ‘puga’, ‘srenis’, ‘kulas’ which together formed the system of Panchayats. These Panchayats resolved disputes and passed awards which were given recognition. The first formal law regarding ‘arbitration’ came into force in 1697 in England. With the enforcement of the Bengal Regulation Act of 1772, the first modern arbitration law was established in India. In 1889, British Arbitration Act came into force, based on which, 10 years later, the Indian Arbitration Act was modelled. This act however was only applicable to the Presidency towns initially and exhibited other loopholes.

The Honourable High Court in the case of Dinkarrai Lakshmiprasad v. Yeshwantrai Hariprasad held that the 1899 Act was highly complex and needed reforms. In 1940, a more revised and specific Act was passed which was known as ‘The Arbitration Act, 1940’. This Act, although a more modified one, was not free from lacunas. This Act lacked provisions prohibiting an arbitrator from leaving any time before the proceedings are completed. It also fails to address an alternative solution if the arbitrator dies during the proceedings of dispute. Marginal Notes too were not regarded as a part of this Act, which was a matter of concern. This Act faced a lot of criticism especially with regards to the Act’s silence on shortcomings present in it and was replaced by the Arbitration and Conciliation Act of 1996. This new Act consolidated and amended laws related to arbitration, international commercial arbitration and enforcement of foreign arbitral awards.

Historical development of patent laws in India

The history of patent laws in India began in the 19th Century with the implementation of Act VI of 1856. This Act was modelled on the British Patent Law of 1852. It laid emphasis on the protection of inventors by providing exclusive privileges for a new invention for a period of 14 years. In 1872, the Patent laws were consolidated in order to extend protection to matters relating to designs. The Act was known as the Patterns and Designs Protection Act which was further amended in 1883. Later in 1911, the Indian Patents and Designs Act replaced all the previous Acts dealing with patent laws. Under this Act, the administration of patents was brought under the management of the Controller of patents for the first time. This Act too went through a number of amendments for example; in 1930, the term of a patent was extended to 16 years from 14 years, in 1945 provisions were made for filling and submission of specifications within the period of nine months. This Act had become archaic after independence and thereby needed replacement. A committee chaired by Justice Bakshi Tek Chand was constituted by the Government of India, in 1949 to review the patent law in India. A number of recommendations were submitted by this Committee. Another Committee was appointed in 1957. After the recommendations given by the second committee, the Patents Act 1970 was passed. After 1994, this Act too underwent certain amendments.

International perspective

If an overall observation is made on the international sphere, it shall be noticed that there are legislations such as Article 28 of “Ley de Marcas” and Article 48 of the “Portuguese Code of Industrial Property” which promoted the resolution of IP disputes by arbitration. However, the arbitrability of disputes concerning the validity of registered patents is not an acceptable practice in the majority of nations. In most countries, the jurisdiction over IPR disputes is reserved with the nations’ domestic courts. To understand the condition of the international platform regarding the arbitrability of patents more accurately, the paper shall indulge in a further discussion on the European as well as the American perspective on the matter at hand.

European perspective

The patent litigation System in Europe has had a black patch on its efficiency criteria since 1999 from the time of the Sepracor’s case. The major problem dominating the European scenario is that the EU consists of 27 Member States, each having its independent and distinctive judicial system. The legal procedure of each nation differs significantly, for example, the Irish Courts regulate patent disputes by Common Law procedure while Germany in itself has a bifurcated system. No single Court in Europe has pan-European jurisdiction to adjudicate patent disputes. As a solution to this problem the Unified Patent Court had been set up in 2013 by an agreement signed by 25 European Union members. This however cannot be termed as a full-proof solution as it does lack in certain aspects. Firstly the patentees have the opportunity to “opt-out” of the UPC system under Article 83(3) of the Agreement on UPC. Secondly, there lies an uncertainty whether the procedures laid down under the UPC Rules would be competent enough to deal with high-value complex technological international patent disputes.

Arbitration in contrast to this might prove to be a better mechanism for patent dispute resolution in the EU as it shall provide uniformity in a procedure that is lacking in the present scenario. Under the 1958 New York Convention, recognition and enforcement of international arbitral awards is available in over 150 nations globally.

American perspective

The situation of the US Patent litigation System is not different from those of other countries. The process takes years and parties incur heavy litigation costs which keep recurring as the court proceeding time period keeps extending, ultimately leading to frustration among the parties. The USA thus decided to resort to Arbitration as a solution to the difficulties of patent litigation. The history of arbitration of patent disputes dates back to the 1980s in the United States. The “Patent Law Amendments Act of 1984” and the Sub-section (a) of 35 U.S.C. § 294, both promote the use of arbitration to resolve patent disputes. The “American Arbitration Association” revised the rules of privacy, binding nature and finality of Arbitration procedures and results while the “International Institute for Conflict Prevention and Resolution”, lays down rules for non-administered arbitration of patent and trade secret disputes. The American legal system has a positive outlook towards arbitration of disputes related to patents and has been proactive in making arbitration a mainstream patent dispute resolution mechanism.

Legislative background in India

In India, the recognition and enforcement of Patent rights are governed and regulated by the “Patents Act, 1970”. Section 104 of the said Act clearly states that jurisdiction of Patent infringements rests with the district courts. However, in several cases, the High Courts of Calcutta, Bombay, Madras and Delhi have exercised original jurisdiction. However, the concept of arbitrability of patents has not been addressed clearly by this Act and also there is the absence of judicial precedent regarding this matter. Section 103(5) of the Act provides that the High Court may order whole proceedings or any question or issue of fact to be referred to an arbitrator in case of the Government’s use of a patented invention. Leaving this aside neither the “Patents Act” nor the “Arbitration and Conciliation Act” talk about arbitration of patent disputes.

Judicial perspective

It is not only that the legislature has failed to present a clear picture regarding the resolution of patent disputes by means of arbitration but the judiciary has failed to do so, as well. However, there are certain landmark cases by which the Apex Court and the High Courts have laid down certain arbitration guidelines. Such as in “Booz Allen Hamilton v. SBI Home Finance” the Supreme Court of India said that “Every civil or commercial dispute, either contractual or non-contractual, which can be decided by a court, is in principle capable of being adjudicated and resolved by arbitration unless the jurisdiction of arbitral tribunals is excluded either expressly or by necessary implication”. The Court further went on to say that though it is a general rule that rights in personam are arbitrable and disputes arising from rights in rem require adjudication by the courts, are not suitable for arbitration; this is not a rigid or inflexible rule. “Disputes relating to subordinate rights in personam arising from rights in rem have always been considered to be arbitrable”.

Another important case that has to be mentioned at this juncture is “Ayyasamy v. Paramasivam”. In this case, the Supreme Court of India concluded that patent, trademarks and copyrights disputes are generally non-arbitrable in nature. However, the Apex Court was silent on the question of whether sub-ordinate rights arising from patents are arbitrable or not. This case served as a precedent in “Lifestyle Equities Cv v. Qdseatoman Designs Pvt. Ltd” where the Madras High Court held that “It can be said that a patent license issue may be arbitrable, but the validity of the underlying patent may not be arbitrable”. It can be concluded from the above-stated judgments that the basis of deciding the arbitrability of patents in India is whether the dispute is right in personam or right in rem. However, it can be inferred that disputes arising from the infringement of patents are arbitrable.

Comparison between arbitral procedure and litigation

The legal systems under different jurisdictions differ by the substantive and procedural laws. Patent laws are territorial in nature and thus it would not be possible to merge laws of different jurisdictions during patent litigation. Patent infringement problems are often international and thus give rise to this problem. Arbitration can serve as a solution to this problem as it follows a single procedure, thereby removing the complexity and conflict between different legal proceedings under different jurisdictions.

Arbitration can take place anywhere and the arbitrator can belong to any nationality thus there would be neutrality of language, laws, procedures, customs, etc. As the proceedings would not take place in Court Halls in case of arbitration, the confidentiality of the dispute resolution can be kept private. In case of complex technical disputes there arises a need for special adjudicators for resolving the cases. These adjudicators are experts in patent laws, unlike judges who lack the expertise to deal with highly technical patent cases which often lead to unsatisfactory judgements. Litigation often results in building undesirable strained relations between the parties which is unlikely to happen in case of arbitration. Patent litigation just as any other litigation is a time consuming and expensive affair. The number of hearing dates keeps on increasing and the parties have to keep on paying their advocates thus making it a very slow and expensive method. Arbitration on the other hand is a much less expensive and speedy mechanism that resolves disputes generally within a few sittings itself. Court decisions can be appealed to higher courts whereas, in arbitration, the results are final and come into force immediately thereby causing less hassle and saving more time. In the case of arbitration, the parties are free to choose a competent decision-maker, which can never be possible in case of litigation.

Conclusion

If one glances through the present legislation in the country, it may seem that arbitration of patent disputes is prohibited. But after analysing the judgments, it can be inferred even though patent rights are rights in rem, certain subordinate rights arising from it are rights in personam and therefore can be resolved by arbitration. However, no statute in itself has clearly laid down the proposition of arbitrability of patents in India. It is required from the Legislature to bring in amendments to the current legislation and provide clarity in this matter. The legislature can take inspiration from countries such as Hong Kong in this Manner. Hong Kong Arbitration (Amendment) Ordinance, 2017, Part 11A clearly lays down the guidelines for arbitration of patent disputes in Hong Kong.

There are presently three aspects related to this matter that needs to be addressed by the legislature. Firstly, the disputes arising over the infringement of patent rights; should be allowed to be resolved by arbitration. The procedures for conventional commercial arbitration laid down in the “Arbitration and Conciliation Act, 1996” should be made applicable in such cases. The award must be binding and should protect the rights and obligations of the parties towards each other. Secondly, when a party files for the registration of a patent, it should be the arbitral tribunal that decides who should have the right over the patent. It is only upon the approval of the tribunal that the Patent Office should proceed to register a patent. This would preserve the confidentiality of patent proceedings. Therefore, such an amendment should be brought to the “Patents Act, 1970”. Thirdly, in case that the Patent Office rejects a patent registration, the dispute arising between the party and the Patent Office should also go to an arbitral tribunal.

The Amendment Act of 2019 aims to build India into an International Arbitration hub. Legislation providing for the arbitration of patent disputes would move India one step closer to this aim. This Amendment Act provides for the establishment of the “Arbitration Council of India”. When this council comes into operation it should address this issue and look into the establishment of effective rules for arbitrability of patent disputes. Guidance for the same can be taken from the Swiss and the American Legislature Protection and preservation of Patents are essential for a nation’s intellectual as well as economic growth. Therefore, it becomes a primary duty of the judicial mechanism of the country to see to it that the most effective methods are adopted while dealing with such crucial matters. It requires a joint effort by both the legislature as well as the judiciary to promote arbitrability of patent disputes by passing requisite laws and setting up efficient and competent arbitral tribunals for resolving patent disputes. It is essential for India to overcome its Patent law challenges and be at par with scientific advancements which are the stepping stones to India’s journey from a developing to a developed nation.

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

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Stealthing : need for a well-defined law in India

By

Sneha Mahawar

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November 24, 2021

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This article is written by Nishtha Garhwal, from Alliance School of Law, Bangalore. This article tends to establish that stealthing should come under the definition of rape and for this purpose, the Indian laws have been compared with that of Canada in order to show that while interpreting stealthing, Indians must adopt the Canadian approach.

Table of Contents

Introduction

An act recently in the discussion, that is, stealthing has emerged in a sexual relationship and this has given rise to debates across the globe on moral as well as legal grounds. Stealthing refers to the act where the condom is removed in the middle of sexual intercourse without the consent of another partner. It is like deceiving the other partner who has consented to protected sexual intercourse. In brief, stealthing can be considered as Non-Consensual Condom Removal (NCCR). It may consequently result in an unwanted pregnancy. In addition to this, it exposes the other partner to the risk of the transmission of Sexually Transmitted Diseases (STDs)

Alexandra Brodsky, who is a civil rights litigator and a Legal Fellow for America’s National Women’s Law Center, had published an article in 2017 in the Columbia Journal of Gender and Law. This article is credited with making stealthing a subject of popular discourse. The existing and proposed legal repercussions of stealthing were reviewed in this study and it also featured interviews with some stealthing victims.

In September 2018, a man who removed his condom amidst sexual intercourse without seeking the permission of his partner was held liable for rape by the Australian court. In Germany, a local court in Berlin held a police officer liable for stealthing on his partner despite the fact that his partner had explicitly asked him to wear a condom. In addition to this, in the States of Wisconsin and California in the United States of America, the lawmakers proposed Bills in order to criminalize stealthing. However, in a country like India where sex itself is taboo, the discourse around stealthing is very limited. Due to the absence of legal precedent in India as well as statistical research on the issue of stealthing, the illicitness of stealthing is still unclear.

In a country like India, the kind of notions that run give strength to the perpetrators, and suppress the voice of the victims of stealthing. This is quite evident from the fact that the cases of stealthing go unreported. Different countries attempt to give different interpretations to stealthing as a sexual offense and each country tries to give its own reasonable justifications for the same.

The principle of lawfulness is followed by the judiciary and it does not run on the principle of righteousness. Thus, the judiciary is bound to follow as well as interpret the laws existing in the country. However, as a result of the lack of any set standard, legal complications are going to happen. Thus, it becomes the duty of the judiciary to undertake the responsibility of taking steps in order to punish the culprit and provide justice to the victim by reasonably applying the laws and taking the viewpoint of the citizens into consideration.

An overview of the act of stealthing

In California, the Democratic Assembly has proposed a Bill in order to make stealthing an act of ‘sexual battery’ under the C i vil Code of California. This has made the issue of stealthing a very controversial thing that gathered huge public attention. There were two attempts prior to the current Bill in order to criminalize stealthing, however, those attempts could not succeed in achieving their objectives. The reasoning that was given in order to reject the prior Bills was that if steathing is criminalized, it would overcrowd the prisons. Thus, the recently proposed Bill opted for a civil route.

As compared to the terminology, the act of stealthing is very common. The same was also proved by a Melbourne study which revealed that 1 in 3 women and 1 in 5 men had been the victims of stealthing. This study was conducted by a Melbourne Sexual Health Centre and Monash industry in which more than 2000 people were surveyed and the study also reported that more than 30% of the 1189 women surveyed had become the victims of stealthing and about 19% of the 1063 men surveyed who have indulged into sexual act with another man had been the victims of stealthing. Considering the fact that many sites on the internet teach men how to commit stealthing, it may seem usual to society and this deters the victims from reporting such cases of stealthing.

Any of the developed jurisprudence in the world do not specify stealthing as illegal under their laws and legislations. However, many courts across the world have attempted to deal with this issue in their own different ways. While dealing with the case of Assange v. Swedish Prosecution Authority (2011), it was held by the Supreme Court of the United Kingdom that stealthing would fall under the definition of rape. In addition to this, the court also introduced the doctrine of conditional consent, and with this, the issue of stealthing gained huge international attention.

There is a scarcity of legal remedies that are available in the case of stealthing. However, there is another act that goes highly unnoticed, that is, the act of reverse-stealthing. This refers to the act in which a man who is in a homosexual or heterosexual relationship becomes the victim of stealthing. Men are also prone to the risk of the transmission of sexually transmitted diseases as a result of unprotected sexual activities.

Root cause of stealthing

It is not a very rare phenomenon, however, the victims of stealthing are afraid and unwilling to openly talk about it. This usually happens because of a lack of awareness from a legal perspective and they feel that society would treat it as a trivial issue. The law graduates of Yale University conducted a study titled ‘Rape-Adjacent’ in 2017 and their study revealed that very often men tend to remove condoms in the middle of sexual intercourse in order to enhance sexual pleasure and also to ascertain their masculinity.

It has been reported that men often have the belief that they have a ‘right to spread their seed’ and this becomes one of the major reasons for the act of stealthing. Most of the men have a belief that they can indulge in any sort of sexual activity as they please with a woman once her consent is obtained.

In a country like India where it is already quite unpopular to use a condom while having sexual intercourse, the issues like stealthing get amplified. This happens because the removal of condoms amidst sexual intercourse for the sake of enhancing sexual pleasure by men is not regarded as a crime in India. The root cause of the issue can be traced to a male-dominated and patriarchal set up which further enhances the male ego. If we look at the National Family Health Survey statistics, it shows that although 94% of the male population in India has awareness about the use of condoms, however, only 5% or even less than 5% of the male population actually use it. In the ongoing male-dominated Indian society, the thought of equalizing stealthing with that of the crime of rape or sexual assault in India is something very far-fetched.

It is believed by Mrinal Satish, who is a professor and was also involved in structuring the laws related to rape in India in its 2013 Amendment, that technically stealthing should be brought under the ambit of the definition of rape. In addition to this, he said that if a sexual act takes place between two adults with some conditions, that act must strictly be confined to such conditions only. Stealthing should be considered a sexual offense and must be treated as the crime of rape because the act of steathing is deceptive, non-consensual as well as exploitative in nature.

As soon as the act of stealthing happens, it turns a consensual sexual activity into a non-consensual one and this clearly, amounts to rape. The act, in addition to being a threat to the body of another partner, also harms the dignity of such a person.

If we look at the legal system of India, the criminal liability of stealthing is still ambiguous. This is because there is not even a single case of stealthing that has been reported in India as the victims feel it is taboo and therefore, are scared of talking about it. Since there is no reported case of stealthing, there exists absolutely no legal precedent and judicial elaboration on this issue in the Indian legal system. This has also resulted in no statistical research in this area.

The global approach to stealthing

The people who are from the LBGTIQ+ community invented the term ‘Stealthing’ and it originated from the United States of America in 2014. The enhanced cases of the HIV-positive patients transferring the disease to the HIV-negative partners without their consent and knowledge prompted the need to bring the issue of stealthing into light and the LGBTIQ+ community performed this task.

Every country across the globe have their own parameters as well as interpretations in order to bring an act like stealthing under the purview of a criminal offense. In India, stealthing has not been clearly defined under the ambit of laws, however, if we look at the laws in Canada, it clearly includes stealthing under the definition of rape. In fact, Canada was among the initial countries that attempted to do so.

In the case of R v. Hutchinson (2014), without the knowledge and consent of the other partner, a man created holes in the condom and he was held guilty of rape by the Supreme Court of Canada. A broad interpretation of the definition of rape was given by the Canadian Supreme Court in this case and the Court included tearing, removal as well as tampering of condoms under the ambit of rape if it is done without the consent and knowledge of another partner.

In Switzerland, the criminal court recognized stealthing as rape, however, the higher court brought it under the definition of defilement and not under the definition of rape. Germany also has a similar approach to Switzerland and it considers stealthing as sexual assault and not rape. The reasoning that was given by the Swiss as well as German courts for adopting such an approach, was that even if stealthing was without the knowledge and consent of the other partner, the sexual intercourse was with the consent of such a partner. Before 2016, a different approach was adopted by the legislation of Germany in cases of rape and the German court held a man liable for the offense of rape only if the victim physically resisted the perpetrator.

One of the consequences of stealthing is unwanted pregnancies. In the case of Assange v. Swedish Prosecution Authority (2011), a man gave his consent for indulging in protected sexual intercourse. However, he became the victim of stealthing as the woman deceived him and made him believe that sexual intercourse was protected. Consequently, the woman became pregnant. The Court dismissed the appeal of the man although it said that emotional harm was suffered by him. However, the Court relied on the fact that no physical harm was caused to the man due to steathing by the women as only women can become pregnant. Therefore, a woman is free if she wishes to promote her own pregnancy.

Indian scenario of stealthing

In the Indian case of Suchita Srivastava v. Chandigarh Administration (2014), it was held by the Court that if a woman’s decision to get and remain pregnant is criminalized, it would be a violation of her right to reproductive freedom guaranteed under Article 21 of the Constitution of India.

In India, sex is considered taboo, and this aids in suppressing the victim’s voice and strengthening the perpetrator’s voice. If we look at the Indian scenario, the judiciary and legislature have not paid much attention to stealthing. As a result, we do not have any clear laws pertaining to stealthing in the Indian legal system. Thus, awareness about stealthing remains a concern in India and there is a negligible amount of research in this area.

According to a study that was conducted in 2005, the masculine ideals of sexual conquest, experimentation as well as entitlements are some of the primary causes for practicing risky sexual activities in India. These ideals coupled with about less than 5% of the population in India actually utilizing contraceptives when indulging in sexual intercourse further aggravates the issue of stealthing in India.

Need for stealthing to be recognized under Criminal Law

In order to critically study the criminal liability of stealthing in the Indian context, two approaches can be applied. Firstly, if someone gives a plain reading of Section 375 of the Indian Penal Code,1860, it explicitly and clearly does not mention stealthing. However, on understanding the explanation of this section, it can be clearly established that the statute considers that consent is very crucial and if the consent is conditional, that is, obtained for a particular sexual act, then it must be confined to that act only. In addition to this, consent is revocable. Thus, if someone has consented to have protected sexual intercourse, the same consent cannot be carried forward after the removal of condom amidst sexual intercourse. As per Section 90 of the Indian Penal Code,1860, if a person gives consent under the misconception of fact, then it amounts to no consent and the same thing can also be applied to the act of stealthing.

The second approach in order to view stealthing from a criminal point of view is to recognize the various risks that a victim of stealthing is exposed to. Unprotected sexual intercourse carries with itself enhanced risks of the transmission of sexual diseases as well as unwanted pregnancies. These things could result in significant medical implications. It has been identified that stealthing is an active method of birth control sabotage. The victim’s right to planned parenthood is snatched from them. In addition to this, it has also been identified that stealthing is a means of intentional transmission of HIV and this attracts criminal liability under Section 270 of the Indian Penal Code,1860 that defines the punishment for anyone who does a malignant act in order to spread infection of disease that could be dangerous to life.

Even if we keep the physical as well as the medical complications aside, it attacks the sexual agency of a person and thus, harms their bodily autonomy. This results in acute mental trauma to the victims leading to their loss of confidence in declining unwanted sexual advances. Therefore, it can be proved by the above analysis that all the ingredients of a crime are present in the act of stealthing. The only thing is that it had not been recognized as a crime. The civil route instead of the criminal route has been opted by the policymakers as well as researchers as far as stealthing is concerned. Therefore, there is a need for India to amend its penal provisions in such a way that rape is defined more in terms of consent instead of physical force. The responsibility of bringing stealthing under judicial as well as criminal framework lies on the lawmakers.

Legal perspective on stealthing

Section 375 of the Indian Penal Code, 1860 defines rape. The laws in India are often challenged for recognizing only the narrow definition of rape and not recognizing the different forms of rape. Although stealthing has not been clearly and explicitly mentioned under the Indian Penal Code, 1860, Section 375 states that a woman’s consent to sexual intercourse includes her voluntary consent and agreement in getting involved in a specific sexual activity either by words or gestures in the form of either verbal or non-verbal communication. This could be interpreted in the sense that if the consent of a woman has been obtained by a man in order to indulge in a sexual act with a promise of wearing a condom, he is bound to restrain himself to that condition as the consent has been obtained for that specific act only.

If removal of the condom happens in the middle of sexual intercourse without the consent or knowledge of the other partner, such a partner’s right to deny their consent is effectively disregarded. Therefore, Section 375 within the scope of its explanation could bring the act of stealthing under the definition of rape. In such cases of stealthing, it could be argued by the victim that they consented to have sexual intercourse with the condom on. Therefore, as soon as the removal of the condom happens without the knowledge and consent of the other partner, it is automatically concluded that there was no consent obtained for such sexual intercourse.

Section 375 of the Indian Penal Code,1860 clearly states that the insertion of objects as well as other parts in the vagina or any other part of women constitutes rape. Thus, the differentiation of different kinds of penetrations is recognized by this Section. In addition to this, the different kinds of penetration have been explicitly mentioned and differentiated under the Criminal Law Amendment Act of 2013. This was done so as to widen the definition of rape under the Indian legal system. Therefore, on this ground, it can be established that if a woman gives consent to have sexual intercourse with a promise to wear a condom, it does not imply that she is giving consent to all the various kinds of penetrations. And, thus, this proves why stealthing must be included under the definition of rape.

The terminologies that are used in the Penal Codes of India, as well as Canada, are quite similar and thus, the Indian approach towards stealthing needs to be modified and it should adopt the approach of Canada while considering the act of stealthing under the definition of rape. Consent is confined to the sexual activity that has been in question as defined under Section 273.1(1) of the Criminal Code of Canada.

In addition to this, the Canadian Supreme Court brought the act of stealthing under the ambit of the definition of rape as the consent for such an activity is said to be obtained by fraud and the same has been mentioned under Section 265(3) of the Criminal Code of Canada. The same interpretation can be applied to Section 375 of the Indian Penal Code,1860. If the consent of the victim has been obtained by the perpetrator by creating any false impression, it amounts to no consent.

In both Canada as well as India, a patriarchal element is present in the society, and thus, it becomes very important to have stringent laws and legislation. Since the 1970s, Canada had been hosting many Indian immigrants and this has led to the rise of Indian culture in Canada. Although people may migrate to different countries, their patriarchal mindset remains the same. Canadian as well as the Indian societies are multi-cultural and are influenced by its democratic government. This creates conditions of conflict and clashes among various cultures which further ignites hatred leading to enhanced rates of crime like rape. Due to such similarities between India and Canada on the social as well as the legal basis, it is very crucial for India to adopt the Canadian approach while interpreting the act of stealthing as consent is the most basic and important requirement of sexual intercourse and if anything is done without consent, it amounts to rape.

Although there exists no explicit provision in order to charge a culprit of stealthing, the fact that the removal of condoms amidst sexual intercourse violates the dignity, as well as the personal agency of the victim, cannot be ignored completely. Stealthing can be considered a violation of the right to lead a life with dignity which is included under the right to life and personal liberty by virtue of Article 21 of the Constitution of India.

The act of stealthing also violates the autonomy of one’s body and thus, attracts Article 21 of the Constitution of India. It has been stated by the Supreme Court of India that rape not only violates a statutory right but it also violates the fundamental right that is present with every citizen of the country under Article 21 of the Constitution of India. It was further emphasized by the Apex Court that every person has the right to bodily integrity by virtue of Article 21 which gets hampered and sacrificed in the cases of rape. Thus, it can be established that rape invades the private and personal space of one’s body.

If the law fails to recognize the right of a victim to withdraw their consent from any kind of sexual activity, it means the dignity, as well as the autonomy of such a person, is denied under the law. This is clearly a compromise with the victim’s right to dignity. Thus, stealthing is a clear violation of the victim’s right guaranteed under Article 21 of the Constitution of India, and therefore, it should be considered no less than rape.

It is not possible for the law and legislation to include everything under its ambit in today’s era of dynamism and thus, it becomes very crucial for the judiciary to undertake the duty of dynamically interpreting the existing laws from various perspectives. Despite the fact that the Indian Judiciary had done a great job by giving life to some of the very old and outdated statutes, due to the absence of sensitization, the Indian Judiciary has failed to dynamically interpret the laws pertaining to sexual crimes.

Most of the judges do not know how to treat the victims of rape as well as sexual assault and find it difficult to have a conversation with them. The situation of the victim is made miserable by the insensitivity of the judges which gets enhanced by the long trials. Thus, this is also the major cause of many sexual offenses being unreported in India. Thus, it becomes very important to train the judges especially in order to handle such situations efficiently and such judicial training would also enable the judges to understand the plight of the victim in a better way before arriving at any judicial decision and giving any judgment.

Conclusion

Stealthing has been a prevalent issue for a long time across societies around the globe although it may be a recent known phenomenon. It is very crucial that sex education must be introduced compulsorily into the curriculum in schools so as to make the students aware of the ways in which they can be sexually exploited and they get to know their rights as being a citizen of the country. This would also contribute to decreasing the hoax among the masses with regard to sexual activities. In India, the major problem is that if someone becomes a victim of stealthing, due to the fear of societal trauma they may have to go through, such a person resists reporting it despite the fact that their rights have been violated. In addition to this, the absence of clarity in the Indian legal system as far as the legality of sexual activities like stealthing is concerned, contributes further to the victim being unsure about coming out and talking about it. Since such cases of the manipulation of consent may appear trivial to most part of the population, unless these acts are explicitly declared illegal by the legal sanctions, the victims will continue to not report such cases.

The government should also take the initiative and start different literary programs in order to educate women about the rights available to them and in addition to this, they must be assisted by the government so as to report the cases of sexual assault as well as rape without fearing either the society or the judicial system.

References

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