Comparing corporate social responsibility in India and other countries

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November 19, 2021

India-Briefing-Corporate-Social-Responsibility-in-India-3 — Image source - https://bit.ly/3DEQBWs

This article is written by Aditi Aggarwal, a student of Symbiosis Law School, NOIDA and it aims to explain CSR provisions in India and other countries along with their comparative analysis.

Introduction

Companies take their resources from society to run their business successfully and thus, these companies morally have a duty to give back something to the society beyond their commitments to investors or stockholders. This is the basic idea behind ‘Corporate Social Responsibility’ (CSR). It can also be termed as ‘enlightened self-interest’. CSR includes corporations being economically responsible, embracing fair trade, improving labor practices, giving back to the community, mitigating environmental damage, and increasing employee satisfaction.

If we look and analyze the geographical evolution of this concept, we would find that there is no consensus on what actually constitutes CSR among businesses in different parts of the world, nor is there is a uniformity in the timeline.This is due to the fact that different countries have target different sectors such as healthcare, poverty, environment etc. In fact, while many countries show a reflection of this concept, some countries do not even support the idea of CSR.

CSR regulations in India

Traditionally, CSR in India has been seen as a philanthropic activity but after the introduction of Section 135 of the Companies Act 2013, India became the first country to have statutorily mandated CSR for specified companies. Section 135 has nine subsections that regulate the CSR regime in India.

The subsections are explained as follows:

Eligibility for undertaking CSR

According to subsection 1, if a company fulfills any of the below-mentioned conditions in its last preceding ‘financial year’, it shall constitute a CSR Committee:

The net worth of a company being five hundred crore rupees or more.
Turnover of a company being one thousand crore rupees or more.
The net profit of the company being five crore rupees or more.

The Committee that would be formed must have three or more directors including one independent director. There is a provision attached to this subsection according to which if under sub-section (4) of Section 149, it is not required by a company to appoint an independent director, then the company must have two or more directors in the CSR Committee.

Any financial year referred to under this Section has to be read with Rule 3(2) of the CST Rules which implies ‘any of the three preceding financial years’.

Composition of a CSR Committee

Sub-section 2 states that the composition of a CSR Committee must be disclosed by the board’s report which is given under Section 134(3).

Duties of a CSR Committee

Sub-section 3 states the duties of a CSR Committee which are as follows:

Formulating and recommending a CSR policy to the Board and that should include activities that have to be taken up by the company. The list of activities that a company can take as part of CSR policy is given under Schedule VII.
Monitoring the CSR policy of the company in a continuous manner i.e. from time to time.
Recommending the amount of expenditure which has to be spent during the undertaking of activities in above two points has to be recommended.

Duties of the Board

Sub-section 4 states the duties of a board of the company which is eligible for undertaking CSR under sub-section 1. Duties are as follows:

Taking into account the CSR Committee’s recommendations. After this, the board in its report has a duty of disclosing the contents of such a policy along with placing it on the company’s website, if there is any.
Ensuring that the activities which are included under the company’s CSR policy are undertaken by the company.

Further, sub-section 5 mentions another duty of the board:

Ensuring that the company is spending at least two percent of average net profits of its CSR policy made during such immediately preceding financial years in every financial year.

Subsection 9 states that where the amount does not exceed fifty lakh rupees which were to be spent by a company under sub-section (5), then the requirement for forming a CSR Committee (under subsection 1) would not be applicable. Further, those functions of the Committee provided under Section 135 have to be discharged by the Board of Directors (BOD) of the company.

Treatment of an unspent CSR amount

There are some provisos attached to subsection 5 which are as follows:

The company, for spending the amount earmarked for CSR activities has to compulsorily give preference to the local area and the areas around where the company operates.
If the company fails to spend the amount specified for CSR, then the board has to compulsorily specify reasons for not doing that in the report (made under clause (o) of Section 134(3)) and the unspent amount needs to be transferred to a fund specified in Schedule VII. This is to be done within six months of the expiry of the financial year. The reasons along with transfer of amount to fund have to be done unless the unspent amount is related to an ongoing project which is referred to under subsection 6.
If an amount is spent more than the requirements which are provided under this subsection by the company, then such a company may set off the excess amount against the requirement to spend under this subsection for such a number of succeeding financial years and in a manner that may be prescribed.

According to subsection 6 of Section 135, the amount which remains unspent under subsection 5 concerning any ongoing project, has to be transferred to a special account within thirty days from the end of the financial year. The special account has to be opened by the company in pursuance of an obligation towards the CSR Policy within three financial years from the date of such transfer.

If a company fails to do so, the company has to transfer the amount to a Fund specified in Schedule VII. This has to be done within thirty days starting from the date of completion of the third financial year.

Subsection 7 states that if a company fails to comply with the provisions under sub-section 5 or 6, such a company shall be liable to a penalty. The penalty is twice the amount which was to be transferred to the Fund specified under Schedule VII or to the Unspent Corporate Social Responsibility Account, as applicable, or one crore rupees, whichever is less.

Further, it is mentioned that company’s officers who made the default would be compulsorily liable to a penalty of one-tenth of the amount that was to be transferred to such Fund specified in Schedule VII of the Unspent Corporate Social Responsibility Account, as applicable or two lakh rupees, whichever is less.

Power of the Central Government

Subsection 8 states that the Central Government may give special or general directions to a company or class of companies as it considers necessary. This is to ensure compliance with provisions of Section 135. It is further mentioned that such a company or class of companies have to comply with such directions.

At last, the explanation attached to Section 135 states that ‘net profit’ would have to be compulsorily calculated according to the provisions under Section 198 and that such profit shall not include sums that may be prescribed.

Activities that can be undertaken as a part of CSR

Activities that can be undertaken as a part of CSR are mentioned under Schedule VII of the Companies Act 2013. These activities (as before amendment) were related to the health sector, sanitation and drinking sector, promoting education, gender equality, environment, eradication of poverty, hunger and malnutrition, national heritage, art and culture, sports, contribution to any fund set up by the central government, the welfare of minority communities, technology, rural development, etc.

The notification issued by the Ministry of Corporate Affairs on 23 March 2020 seeks to include funds spent on various activities related to COVID-19 covered under the existing items under Schedule VII of the Companies Act, 2013. This has been done because the World Health Organization declared Coronavirus as a pandemic and subsequently the Government of India decided to treat it as a notified disaster.

The other notification was related to incubators. Under the earlier provision, only technology business incubators as defined by the Department of Science and Technology which were located within academic institutes were eligible to receive funds under CSR. The new notification permitted all incubators that are supported by any state or central government or agency to be eligible to receive funds under CSR.

Examples of CSR in India

In India, some successful companies undertake CSR projects on a large scale. For example, The Tata Group, an Indian multinational conglomerate manufacturer of airplanes, automobiles, and other products works for bringing a significant improvement in the community, alleviating poverty, helping people through various self-help groups, and carrying out many projects in the field of education. Another example can be Ultratech Cement, the biggest cement company in India which is involved in a lot of social work with a focus on healthcare and family welfare programs, infrastructure, environment, education, sustainable livelihood, and social welfare across 407 villages.

Countries that have made CSR a legal mandate

‘Mandatory CSR’ can be defined as a general legal duty of acting in a responsible social manner. That legal duty can be created under either corporate law or as a part of the fiduciary duty of directors.

Even though CSR is voluntary and beyond compliance with the law. Yet, a few countries such as China, UK, South Africa, and Indonesia have taken a progressive step and made CSR a legal mandate. Their corporate statutes expressly state that companies shall engage in CSR activities.

China

China was among the first countries in the world to mention the phrase ‘CSR’ in its corporate statute. Company Law of the People’s Republic of China 2006 states that a company shall undertake “social responsibility” in doing the business.

According to the experience of China regarding CSR, it is less a corporate behavior standard and more of a judicial review standard. It is also evidenced that interpretation of CSR places high demands on the judiciary.

Indonesia

Limited Liability Company Act 2007 of Indonesia requires explicitly that the companies in the sector of natural resources or any connection with such resources are under an obligation of implementing environmental and social responsibility.

This law of August 2007 made Indonesia the first nation in the world to mandate companies in the extractive and energy industries to disclose their CSR activities. Ten years have passed since the CSR mandate and Indonesia has yet to issue a related implementing regulation, hence making it unenforceable.

United Kingdom

The UK Companies Act, 2006 takes the approach of making CSR a legal duty as a part of the fiduciary duty of directors. The law requires directors to have regard to two things, one is to long-term programs and another is to various factors of CSR including the interests of suppliers, environment, consumers, and employees. It broadly replaced the old duty to act in the company’s best interests.

South Africa

Mandatory CSR can be implemented by a company’s board of directors where the interests of the shareholders can be served easily. Corporate Law 2008 of South Africa requires the creation of a CSR board committee that is responsible for supervising and enacting the company’s CSR policies. In addition to this, a new report was issued in 2010 which focuses on the issues of risk and sustainability.

Comparison of CSR regulations in India with that of other countries

CSR is not just a legal duty, it can also be defined as a procedure for assessing the impact of an organization on society and thus, evaluating its responsibilities. The procedure begins with an assessment of the following aspects of each business:

Customers
Environment
Suppliers
Employees
Communities

Companies (CSR Policy) Amendment Rules 2021 bring a critical change in connection with the scope of expenditure of CSR funds on employees. The 2014 Rules prohibited a company from investing the amount of CSR in activities that are beneficial only to the employees of the company and their families. The Amendment Rules appear to prohibit any benefit being received by the employees of the company from the CSR expenditure.

After analyzing CSR laws in India, it is clear that the country mixes two factors under this regime: traditional philanthropy and strategic projects. CSR in India operates at places where there is a lack of resources such as toilets and schools. A community’s need is a major factor under the CSR regime on which India broadly places a top priority. In contrast to this, CSR in wealthier or major countries like Canada and Australia utilizes CSR funding mostly to cultural institutions and such countries prefer implementing green business practices. CSR is approached with the intrinsic skills of the business in such countries.

In conclusion, two of the biggest differences between India’s approach and other countries’ approach towards CSR is as follows:

The government of India mandates CSR spending while the government of most of the other countries do not mandate it.
CSR in India is understood in a way that allows businesses to mitigate the negative impact its activities have caused on the local communities which means that social wellbeing and business success are framed and perceived as antithetical in India. While in other countries like Brazil, U.S. or the European Union, the two are seen as mutually beneficial.

Implementation and success of CSR globally

For the universal acceptance of undertaking CSR, the United Nations (UN) has played a major and significant role. It promoted the “Global Compact” under which many countries are signatories. This global compact is the world’s largest initiative concerning corporate sustainability which binds the signatories to universally accepted principles of social responsibility which the businesses in those countries ought to follow and which are tracked for implementation.

Mandating certain activities as a part of CSR programme : need of the hour

Ghana is a country where there is no comprehensive CSR policy or law. It is an emerging economy where the financial backdrop was faced recently. Research suggests that Ghana should focus mostly on the assessment of aspects of stakeholders in rolling out the CSR program. It is further researched that business organizations are pressured to report on sustainability activities due to the stakeholder and institutional influence.

The research also suggests that multinationals in Ghana are guided by legal prescriptions for undertaking CSR programs while their indigenous counterparts are mostly guided by social and discretionary considerations. However, firms while carrying out CSR, organizations also become mindful of their impression and reputation before the general public. What influences CSR in the West may differ from Africa and developing countries.

In advanced countries, ethical issues are highly rated as a part of CSR. An MNC may desire to score high and be more ethical when it comes to CSR international ratings but that may not be the need and priority of countries within which those MNCs operate. Thus, these multinationals need to adapt their CSR programs to suit the needs and settings of their host countries.

Multinationals have their interests like giving priority to global consistency through managing international standards, upkeeping the interests and values of headquarters and home country while local representatives have interests like having local responsiveness by managing host country interests, laws, and values. This conflict can only be managed by an organized development of a framework. Thus, the mandate of undertaking certain activities as a part of CSR is an urgent necessity for addressing issues like poverty and underdevelopment in the least developed and emerging economies.

Conclusion

The concept of CSR is nothing but looking beyond profits. Though India is the first country in the world to have a mandatory statutory compliance requirement on CSR spending, there are still many challenges ahead that would be addressed by the working together of government, corporations, and civil society. The same is the condition with the other countries where a proper framework of CSR is needed and implementation needs to be done in a proper manner.

Undoubtedly, consumers would be more willing to purchase the product or service of a company if that company shows a commitment to address economic, environmental, and social issues. Thus, apart from creating appealing and conscious advertisements, corporations must enlist cooperation and support of the media in spreading awareness about CSR and its impact on the society to the people at large.

References

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How to draft a special leave petition

By

Shoronya Banerjee

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November 19, 2021

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This article is written by Naveen Dabral, pursuing Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Introduction

The Supreme Court is mainly an apex court of appeal in India and can entertain appeals in all matters if certain specified requirements of Articles 132, 133, and 134 of the Constitution of India are met with. The appeals may be filed against any judgment/decree/final order of the various High Courts and as well as the Subordinate Courts in the territory of India.

If the concerned High Court certifies with respect to Article 134A that the case involves a substantial question of law which requires interpretation of the constitution or of general importance for the public in large and that in the opinion of the concerned High Court the said question needs to be decided by the Supreme Court. Where such a certificate is given by the High court, any party in the case may appeal to the Apex Court on the ground that any such question has been wrongly decided.

Special Leave Petition (SLP)

If the concerned High Court refuses to certify a case as above said or if any of the conditions as above said are not fulfilled, any party can ask for Special Leave to file an appeal by invoking the extraordinary (special) appellate jurisdiction of the Supreme Court under Article 136 of the Constitution.
Under Article 136 of the Constitution of India an SLP can be filed in the following circumstances:

SLP can be filed against any judgment/order/ decree/ determination of any High Court/Tribunal.
SLP can also be filed if the concerned High Court declines to grant the certificate of fitness to appeal to the Supreme Court.

However, SLP cannot be obtained to challenge any judgment,/decree/determination/ sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces [Article 136(2)].

The appeal in the form of a special leave petition can be made in a case where any substantial question of law is involved or where gross injustice has been caused. Further, the judgment, order, or decree against which the appeal is being filed must have the character of judicial adjudication. This means that purely executive or administrative order or ruling cannot be considered as a matter of appeal.
In plain, the term Special Leave Petition (SLP) means taking of a special permission by an individual for being heard in an appeal against the order/ judgment/decree/determination passed or made by any High court, Court, or tribunal. Therefore, SLP is not an appeal but a petition filed for an appeal. So, once an SLP is filed, the Hon’ble Supreme Court may hear the matter, and if it considers fit, it may grant the ‘leave’ and convert that said petition into an ‘appeal. Thereafter, the Supreme Court will hear the concerned matter and pass judgment.

SLP and limitation

The limitation period for filing an SLP is laid down in the Supreme Court Rules, 2013.
The SLP has to be filed within 60 days in case the High Court refused to give a certificate of fitness to appeal to the Supreme Court. The period of 60 days is calculated from the date of the order of refusal by the High Court.
In other cases, the limitation period is 90 days from the date of judgment/order challenged in the SLP. However, while computing the limitation period, the time period spent in making the application to seek certificate in the High Court till its rejection is to be excluded.

Important part and clauses in the definition

Synopsis

Synopsis is the most important part in the entire SLP where the petitioner introduces a brief synopsis of the facts and issues presented in the case. Synopsis is something which is going to put the best of the case forward. Therefore we need to put a lot of effort into synopsis in order to catch the eyes of the Hon’ble judges of the Supreme Court.
The first paragraph of the synopsis is meant for the judgment, decree, determination, sentence or order against which the petitioner has filed the present SLP.
Explain the case in simple and brief where the idea is to simplify life for everybody be it an advocate, his client or judges. The simpler one can make the complex question, the easier it becomes the chances of getting the eyes of the Hon’ble Judges.

Brief of the case

Apart from the client’s story, read all the pleadings and documents that the client had gone through in the courts subordinate to the Supreme Court since as an officer of the court it is the responsibility of an Advocate to make sure that all the documents or pleading annexed with the SLP are true.

List of dates and events

Events need to be entered there in the list chronologically and Annexure are to be marked only as long as the annexed documents form a part of the pleadings of the courts subordinate to the Supreme Court. We cannot file anything which we have not filed in the trial court and the High court proceedings.
For filing a new or an additional document, a permission from the Hon’ble Supreme Court is to obtain by filing an Interlocutory Application (IA) for additional document and the grounds thereof are to be stated therein, consequently it is upon the discretion of the court to permit to bring the new documents on record or not.
Where we are to file the subsequent events which took place after the impugned order in challenge in the SLP, we cannot use that them in SLP as a matter of course, rather file them as additional documents via an IA as to bring the latest events and documents on record and also state all the grounds as to why you want to file them and why it is important for adjudication of the matter.
The date of the impugned order which is to be challenged by the present SLP will always form part of the list of dates and events in its last column.

Cause title

Cause title mainly contains

The title as to whether the present SLP is filed for invoking the criminal appellate jurisdiction or the civil appellate jurisdiction of the Supreme Court.
The statement to the effect that against what impugned judgment/ order / decree or determination of the concerned High court, subordinate court or tribunal the petitioner is pleading.
A statement to the prayer of interim relief, if it is proper to ask in the instant petition. For example: Prayer for release on bail as an interim relief.
The name of different interlocutory application (IAs), for example: an application for exemption from filing official translation, an application for condonation for delay in filing the said SLP, or- application for filing lengthy list of dates and events.

Memo of parties

A full description and addresses of the parties and their status in the courts subordinate to the Supreme Court in the form of the memo of parties is to be mentioned in the beginning of the petition.
Memo of parties is always considered as the most important part of the petition as no party should be ignored when they were already a party in the courts subordinate to the Supreme Court, that is, no party should go unheard. Therefore memo of parties must be cross checked from the pleadings happened in the lower courts.
Where the respondent is the state or a company, it must be clear to whom the petitioner wants the notice to be issued. For example: State of Uttarakhand through Police station Patel Nagar and Reliance capital Ltd through its chairman/ MD etc.
Where the petitioner had never been a party to matter in the courts subordinate to the Supreme Court, but still wishes to challenge the said matter through an SLP, he can do so by filing an IA as a permission to file an SLP. And then it is at the discretion of the Hon’ble court to grant such permission or not.

Question of law

The petitioner has to make questions of law to make an appeal against the judgment. These questions should relate to laws relevant to the general public as well.
The grounds of challenge should then be systematically set out as to why the High Court’s judgment is not correct in law. Make this clause as limited as possible by bringing forward only those points which we think the court should be adjudicating upon and state the specific point of law. For example, where a bail application was dismissed state the legal points why it was dismissed. Supporting the precedent case laws where the Hon’ble Supreme Court had settled its position regarding that question of law.

Declaration clauses

There are the two declarations that the petitioner needs to enter upon while drafting an SLP, viz.

Declaration in terms of Rule (2) (2).
Declaration in terms of Rule (4).

The former declaration deals with the statement that no other petition seeking SLP has been filed by the appellant against the same judgment/order/decree/determination and the latter one, that the documents filed with the petition are true and form part of the record of the courts below. Both have very standard formats provided in the Supreme Court website.

Grounds for the grant of the Special Leave to Appeal

The grounds to be taken are of such a kind which indicates that the lower court is at fault as it ignored the material facts and erred in taking them into consideration.
For example: Because the Hon’ble High court erred in noticing that there is no ingredient implicating the petitioner in Constitution of the alleged offence and that no iota of evidence had been put forward on record to make out a case against the petitioner.
The grounds for the grant of the SLP must be the same which have been taken in the courts subordinate to the Supreme Court. Never take a ground which had not pleaded before.
We can only argue in an SLP jurisdiction on those facts/ documents/evidence which would have already been produced in the lower courts in hierarchy that the judges in the lower judiciary were able to look at it and adjudicate accordingly.

Grounds for Interim Relief

Along with the SLP, where some interim relief is prayed for, mostly sought in the form bail and stay in the proceeding of the impugned order/decree/ judgment/ determination against which the SLP has been filed. The grounds are such as how the petitioner is ready to abide by the conditions of the said relief once granted and how the petitioner is a suitable applicant for the said relief.

Prayer Clause

There are two kinds of prayer clauses in an SLP draft, one is the main prayer and the other is the prayer for the interim relief if any. While the former deals with granting the special leave for appeal against the impugned order/ judgment /decree or determination of any court or tribunal subordinate to the Supreme Court, the latter one becomes significant at the notice stage.
No separate application for interim relief needs to be filed. Interim relief prayer is to be stated in the main petition itself.
The interim relief is prayed for mostly in the form of bail and putting a stay in the proceeding of the impugned order/decree/ judgment/ determination against which the SLP has been filed.

Certificate

A certificate by an (AOR) Advocate-On-Record is issued on the instructions of the petitioner certifying that The SLP is limited only to the proceeding/order of the lower court and their facts, documents and grounds only and to the relevancy of the documents attached.

Index

The index in the SLP draft is slightly different from the regular index format that happened to be in the regular plain or petition as documents here are separated therefore pages are separately listed.
Appendix is important in asserting as to what section the SLP is relied upon. In criminal matters one has to annex a FIR format, which forms the last section therein.

Format of the SLP draft

Order XXI and Order XXII of the Supreme Court Rules, 2013, deals with the SLP (Civil) and SLP (criminal) respectively. The Supreme Court has a pre-set format for the filing of the SLP in Form no. 28.Elluciated here below.

SAMPLE DRAFT OF THE SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION

IN THE SUPREME COURT OF INDIA

[S.C.R., Order XXI Rule 3(1) (a)]

CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION

UNDER ORDER XXII RULE 2(1)

S.L.P. (Criminal) No. 165215 OF 2021

(Against the impugned judgment and the final order dated 15.08.2021 and passed by the of the Hon’ble High court of Uttarakhand at Nainital in UK..Cr.C. No.5585/2021)

BETWEEN Position of Parties

In the Hon’ble High Court In this Hon’ble Court

Raman Rawat @ram S/o Chaman RawatR/o 176 Sailok colony G.M.S Road, Dehradun Uttarakhand Versus	Petitioner	Petitioner
The State of Uttarakhand through Police Station Vasant Vihar, Dehradun Uttarakhand	Respondent/ State	Respondent

TO

HON’BLE THE CHIEF JUSTICE OF INDIA

AND HIS COMPANION JUDGES OF THE

SUPREME COURT OF INDIA.

THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED

MOST RESPECTFULLY SHOWETH:

1. That the petitioner is filing this Special Leave Petition against the impugned order and final order dated 16.08.2021 passed by the High court of Uttarakhand at Dehradun in UK..Cr.C. No.5585/2021 whereby the Hon’ble High Court dismissed the Anticipatory bail application filed by the petitioner.

2. QUESTIONS OF LAW:

Whether the rejection of the bail application was correct in terms of the law laid down in the catena of judgments by this Hon’ble court?
Whether the Hon’ble High Court ignored the fact that the matter has been settled between the parties and more so was of civil nature and did not require criminal proceedings?
Whether the Hon’ble High Court failed to appreciate that the petitioner did not commit any offence nor did he conspire to attempt an act as alleged in the complaint?
Whether the Hon’ble High Court erred by ignoring the settled principles of anticipatory bail jurisprudence that the petitioner is unlikely to abscond or misuse his liberty while in bail?

3. DECLARATION IN TERMS OF RULE 3(2): The petitioner states that he has filed no other petition seeking leave to appeal has been filed by him against the impugned judgment and order dated 16.08.2021 passed by the High court of Uttarakhand at Dehradun in UK..Cr.C. No.5585/2021

4. DECLARATION IN TERMS OF RULE 5: The Annexure P-1 and P-2 filed along with the Special Leave Petition are the true copies of the pleadings/documents which formed part of the records of the case in the Court/ Tribunal below against whose order the leave to appeal is sought for in this petition.

5. GROUNDS: Leave to appeal is sought for on inter alia, the following grounds.

Because the Hon’ble High Court erred in taking into account that the basis, the documents prima facie, the petitioner has not committed any offence as alleged against him.
Because the Hon’ble High Court ignored that the petitioner is innocent and has been falsely robbed in the entire case.
Because the Hon’ble High Court erred in noticing that there is no ingredient in implicating the petitioner in the constitution of the alleged offence. And that no iota of evidence has been put on record to make out a case against the petitioner.
…………
…………..
………….etc.

6. GROUNDS FOR INTERIM RELIEF:

That the petitioner is ready to abide by all the conditions that this Hon’ble court may impose while granting the benefit of bail.
That the petitioner is the permanent resident of the address mentioned in the cause title where he has both movable and immovable properties, and there is no chance of him to abscond.
That the petitioner has a good prima facie case and balance of convenience lies in his favour.

7. MAIN PRAYER:

Wherefore, in the light of the above the petitioner herein most humbly submits that this Hon’ble Court may be pleased to:

Grant a Special leave to appeal against the impugned order and final order dated 16.08.2021 passed by the High court of Uttarakhand at Dehradun in UK..Cr.C. No.5585/2021;
Pass any other order or orders as this Hon’ble court may deem fit and proper in the facts and circumstances of the case.

8. INTERIM RELIEF:

Wherefore, in the light of the above the petitioner herein most humbly submits that this Hon’ble Court may be pleased to:

Grant anticipatory bail to the petitioner to the satisfaction of the Ld Session Judge, Dehradun, Uttarakhand during the pendency of the Special Leave Petition;
Pass any other order or orders as this Hon’ble court may deem fit and proper in the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER / APPLICANT AS IN DUTY BOUND SHALL EVER PRAY.

Filed by:

Naveen Dabral

Advocate-on-Record for the Petitioners Place: New Delhi

Drawn on: 10.09.2021

Filed on: 19.09.2021

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION

S.L.P. (Criminal) No. 165215 OF 2021

IN THE MATTER OF;

Ram Rawat @Ram …Petitioner

VERSUS

State of Uttarakhand …Respondent

CERTIFICATE

It is to certify that this Special Leave Petition is confirmed only to the pleadings before the High Court of Uttarakhand whose order is challenged and the documents relied upon in those proceedings. No additional/new facts, documents or grounds have been taken therein or relied upon in this Petition. It is further certified that the copies of the documents/annexure attached to this Petition are necessary to answer the question of law raised in the petition or to make out grounds urged in this Petition for consideration of this Hon’ble Court. This Certificate is given on the basis of the instructions given by the Petitioner person authorized by the Petitioner whose affidavit is filed in support of the SLP.

Date 10th of September 2021
New Delhi

Filed by
Adv Naveen Dabral

INDEX

SR. NO.	PARTICULARS OF THE DOCUMENTS	Page No. of the parts of which it belongs	REMARK
PART-IContents of the paper book	PART-II Contents of the file alone

	Court fees	A	A
	Office report on limitation	A1	A2
	Listing Performa		A3
	Cover page of the paper book.		A4
	Index of recording of the proceeding.
	…………………
	……………………..

Conclusion

Special Leave Petition or SLP holds a prime place in the Indian judicial system and has been provided as a “residual power” in the hands of the Supreme Court of India to be exercised only in cases when any substantial question of law is involved or gross injustice has been done. It is a discretionary power vested in the Supreme Court of India and It also has the power to refuse the SLP. The Constitution of India under Article 136 provides privilege to the Supreme Court of India to grant leave to appeal or not.

References

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

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Evolution of law regarding terms of protection of copyright : a US perspective

By

Oishika Banerji

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November 19, 2021

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This article has been written by Ananya Singh pursuing the Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. This article has been edited by Aatima Bhatia (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).

Table of Contents

Introduction

In this article, I will trace the historical evolution of the term ‘copyright protection’ in the United States of America (USA/US) by looking into the timeline of events that led to the current term of copyright protection, that is, life of the author plus another 70 years, as a standard rule for works created after 1 January 1978. I will also discuss two landmark cases that had a major impact on the term of copyright protection as we know today. The US copyright laws have different terms of protection for various kinds of copyright works and depend on varying factors, such as, if the work is published before 1978. More information on the same can be found here. However, for the purposes of this article, I will solely discuss the term of copyright protection granted to Authors.

The US term of protection : a timeline

The USA until 1976 had protection for a limited number of years entirely unrelated to the author’s life. However, all that changed. Now, the copyright term is entirely tied to the lifetime of the author plus 70 years (post mortem auctoris). What led to this gradual evolution is intricately rooted in the various internal and external factors. The timeline of the same is detailed as follows.

The Copyright Act of 1790

The copyright provision for the first time was enacted in the year 1790 via the Copyright Act of 1790 (1790 Act). It was brought about with the objective of encouraging learning by “by Securing the Copies of Maps, Charts, and Books to the Authors and Proprietors of Such Copies, was modelled on the Statute of Anne (1710).” The 1790 Act granted American authors copyright protection for 14 years and a renewal term of another fourteen years to print, re-print and/or publish their work. The reason for limited years of protection was to limit monopoly and promote creativity and advancement in science and useful arts by providing easier access to works in the public domain. The 1790 Act was further revised in 1831,18070,1909 and 1976, respectively.

The Copyright Act of 1790 : revision in 1831

During the revision of the 1790 Act in the year 1831, the term of copyright protection was extended to 28 years with an extension period of 14 years. This change was primarily brought in by the Congress to provide the American authors the same protection as available in Europe at the time. The extension of 14 years applied to future works as well as current works in which copyright subsisted.

The Copyright Act of 1790 : revision in 1909

Another major revision to the US Copyright Act (the Act) was made in 1909. The revision was made to further broaden the scope of copyright protection term to 28 years as well as grant a renewal period of another 28 years along with including other categories of works for copyright protection. This revision was claimed to have been made to balance the public interest vis-à-vis proprietor’s rights. The following extract has been produced to provide an insight into the objective behind 1909 revision:

“The main object to be desired in expanding copyright protection accorded to music has been to give the composer an adequate return for the value of his composition, and it has been a serious and difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests.”

The Copyright Act of 1790 : revision in 1976

Another major event that led to the eventual change in the terms of copyright protection in 1886 occurred during the Berne Convention. Then came the conclusive and final revision of the Act in 1976 (1976 Act). There were primarily two reasons behind this revision: (i) Due to various technological advancements, it became vital to include works that can be copyrighted and the ways through which these works are infringed, and (ii) in order to adhere with the anticipated Convention. The U.S.A became a signatory to the Berne Convention in 1988.

The 1976 Act, in its application, made all preceding copyright laws unenforceable and extended the term of copyright protection to the lifetime of the author plus another 50 years. Through the 1976 Act, the work for hire was also protected for 75 years. The 50 years term following the author’s death was adopted by Berne Convention in its 1948 revision, thereby making it the norm for many countries around the world. Later, GATT/TRIP Agreement decreed 50-year post mortem auctoris to be a minimum term of copyright protection for all the signatory countries at the World Trade Organization.

Apart from the term of protection other areas which the 1976 Act covered through this revision were: “scope and subject matter of works covered, exclusive rights…copyright notice and copyright registration, copyright infringement, fair use and defences and remedies to infringement. With this revision, for the first time the fair use and first sale doctrines were codified, and copyright was extended to unpublished works.” In addition to this, Section 108 was enacted to permit library photocopying under certain circumstances.

1998 enactment of Sonny Bono Copyright Term Extension Act

The Enactment of the Copyright Term Extension Act (CTEA) was preceded by the European Community’s (EC) Directive that required copyright protection for 70 years following the author’s death. The Directive further stated that works not authored by an EC national should not have more protection than what their home country or their country of origin was provided with by the EU member states.

The EU Directive meant that the US copyright work would be protected for life plus 50 years as established by the 1976 Act by EU member states. Due to this development, on October 7, 1998,the 105th congress of the USA passed the Copyright Term Extension Act (CTEA) at its second session. The CTEA extended the earlier copyright protection of life of the author to 50 years, extending up to the lifetime of the author plus another 70 years. An exception permitted “permits libraries, archives, and non-profit educational institutions to treat copyrighted works in their last 20 years of protection as if they were in the public domain for non-commercial purposes, under certain limited conditions.”

The CTEA made US copyright laws sync with that of the European Union in the same way the 1976 Act synced with the 50 years term of copyright protection by the Berne Convention to which the US became a signatory in 1988.

The 2003 landmark case of Eldred v. Ashcroft

Eldred v. Ashcroft, challenged the constitutional validity of the CTEA due to its retrospective effect on previous copyright laws, thereby giving Congress the ability to change the term of protection infinite times, which, by extension, would make the term of copyright protection indefinite and infinite. On 15 January 2003, the US Supreme Court, in this case, rejected the plaintiff’s contention that “repeated retroactive copyright term extensions would be in violation of intent of the Constitution’s Copyright Clause ‘for limited Times’ term.”

The 2012 landmark case of Golan v. Holder

In Golan v. Holder, 565 US 302 (2012), the plaintiff challenged the 1994 law implemented through the Uruguay Round Agreement, giving non-American copyright owners copyright protection under US law for the remaining period of copyright protection in their home country. In other words, if the term of protection in foreign copyright owners in their home country is 100 years, they will have the same protection in the USA. The US Supreme Court ruled in favour of Congress wherein it was upheld that Congress has the power to restore copyright protection in works that are in the public domain. This law benefited works not protected by the US copyright law, leading to a colossal quantity of works withdrawn from the public domain.

The current term and renewal of copyright

As mentioned earlier, as a standard rule, the current term of copyright protection is the life of the author plus another 70 years after the death of the author, for works created after January 1, 1978. If the work is created under joint authorship with two or multiple authors then the term is the lifetime of the last surviving author plus 70 years. “For works made for hire and anonymous or pseudonymous works, the duration of copyright is 95 years from publication or 120 years from creation, whichever is shorter.”

Copyright in works created after January 1, 1978, does not require renewal. As for works created before January 1, 1978, the renewal requirement is optional after 28 years of the work coming into existence. It goes without saying that getting a renewal is always advantageous for the copyright owner. At the end of the initial term, that is, 28 years, the copyright can be renewed for another 67 years, thereby granting a total protection of up to 95 years. All in all, the renewal term for copyright protection for works created prior to 1978 was upgraded from 14 to 28 to 47 to 67 years.

Conclusion

During the 20th century, the term of copyright protection in the US gradually increased from being fixed for 14 years plus another14-year renewal period to the author’s lifetime plus an additional 70 years. The change was witnessed due to various internal and external factors at play, be it Berne Convention or EU Directive, advancement in technology, need for innovation and preservation of creativity, or the encouragement of all these factors. The historical evolution of the term of copyright protection did prove beneficial to the US in the long run.

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General provisions clause of a US contract

By

Oishika Banerji

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November 19, 2021

0

This article has been written by Izzy Martin Maxino pursuing the Diploma in US Intellectual Property Law and Paralegal Studies from LawSikho. This article has been edited by Zigishu Singh (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).

Table of Contents

Introduction

Throughout this article, I intend to provide entrepreneurs with an understanding of the basic structure of a contract, as well as common contract clauses that are found in most commercial contracts. There are a number of references to which readers can refer if they wish to learn more about what is described here.

Basic structure of a contract

A contract may come in at least three forms.

The Traditional Form Contract is the most common and is the appropriate form for closings. In this form, the signatures appear on the last page of the contract but before any attachments (schedules or exhibits).

A Schedule Agreement is arranged so the signatures appear on the first page. The provisions proper of the contract is included in an attachment called “General Terms and Conditions” or variations thereof.

A Letter Agreement is informal in nature and is used in opening an ongoing relationship.

No matter what the form is, most contracts have the following parts:

Title of the contract;
Introduction;
Statement of Purpose;
Statement of Agreement;
Definitions;
Performance provisions;
Boilerplate provisions;
Signatures;
Schedules and exhibits.

General clauses in performance provisions

The most discussed (negotiated) parts of an agreement is the Definitions (5), and Performance provisions (6). For example, in a loan agreement, parties usually debate over the following:

conditions precedent to disbursement,
covenants, representations and warranties,
penalties for default by the borrower.

All these will be different for different transaction. Boilerplate provisions (7) are provisions that are not heavily discussed by the parties. Often, these are cut-and-paste templates.

There are industry standard clauses for each kind of transaction.

Note: A transaction is simply a business deal. Examples of common transactions you encounter everyday:

Loan. When you deposit money in a bank, you are lending money to the bank.
Sale. A simple example would be a garage sale, or when you buy groceries.
Copyright licensing. When you pay for music online you are paying for the license to listen to the music for personal use.
Professional services. When you call your plumber to fix your leaking sink pipes.
Software as a service (SaaS). Netflix.
Mobility as a service (MaaS). Grab, Uber, Zomato, etc.
Platform as a service (PaaS). AWS Elastic Beanstalk, Windows Azure, Heroku, Force.com, Google App Engine

The performance provisions describe the promises made by each party and they generally answer: which party is obligated to do something, when it is to be done, what is the consideration (payment), how is payment made, what happens when a party fails to fulfill an obligation, what happens when a party intentionally or negligently violates a contract clause.

Lenné Eidson Espenschied, a practitioner of transactional law for more than 25 years, lists 7 common performance provisions in his book Contract Drafting: Powerful Prose in Transactional Practice:

Scope;
Representations and Warranties;
Express Warranties, Limited Warranties, and Disclaimers;
Limitations of Liability;
Indemnification Clauses;
Liquidated Damage Clauses;
Term and Termination Provisions.

Bhumesh Verma, a leading corporate practitioner ranked in the ‘A List’ of the Top 100 Indian Lawyers by India Business Law Journal, calls the performance provisions: the Operative Clauses.Verma noted that sometimes, parties in a transaction overemphasize the safeguards (clauses detailing how a party can protect its interests) but forget to include the basic aim and objective of the agreement, or if it is included, it’s drowned and hidden by other contractual provisions, making it hard for the reader to understand what the transaction is. So it is pertinent to note that:

The purpose or objective of the agreement or the essence of the transaction, by whatever name it may be called, must be mentioned at the first instance.

Verma identified a more comprehensive list of operative clauses:

Rights and obligations of the parties;
Covenants;
Conditions precedent;
Closing deliverables;
Post-closing formalities;
Payments under the agreement;
Lock-in;
Remedial actions;
Confidentiality;
Exclusivity/Restrictions;
Non-compete;
Non-solicitation;
Damages;
Liquidated Damages;
Territory;
Costs and expenses allocation;
Indemnification and Exoneration;
Representation and Warranties;
Term/Duration of the agreement;
Renewal/Extension of the agreement;
Termination of the agreement;
Effect of expiry or termination;
Survival of certain clauses;
Force Majeure;
Limitation of liability.

Not all transactions need all the clauses identified by Verma.

Common provisions in similar transactions

As illustrated above, every contract may be different depending on the nature of the transaction. But there are certain performance provisions that are common to transactions of a similar nature.

To illustrate, let’s compare an acquisition or merger of a company to a sale of goods. In a merger and acquisition (“Acquisition”), company A in essence pays money to company B to purchase the latter’s business and the company itself, including all of its assets and liabilities (an oversimplification). In a contract for sale of goods, person A pays money to B to purchase something from the latter. Contracts involving an Acquisition will usually have a section called “Representations and Warranties.” On the other hand, sale of goods contracts will usually have a section called “warranty” or “disclaimer on warranties” and similar headings. Clauses under “Representation and warranties” in an acquisition, are of the same nature of the clauses under “warranty” in a sale of goods. Both clauses, notwithstanding the complexity of one over the other, deal with an assertion or statement of fact to induce another to enter into a transaction (“representation”), and a promise that a representation or some condition is true, supported by an implied promise to reimburse an injury suffered if the condition or representation is false (“warranty”).

Harmonizing Espenschied and Verma’s list

Espenschied’s performance provisions may be regarded as the top-level category of a general clause, while Verma’s operative clauses can be categorized under each top-level category.

Scope

Rights and obligations of the parties.
Covenants.
Territory.
Conditions precedent.
Closing deliverables.
Payments under the agreement.
Exclusivity/Restrictions.
Lock-in.
Costs and expenses allocation.
Post-closing formalities.
Confidentiality.
Non-compete.
Non-solicitation.
Remedial actions.

Representations and Warranties
Express Warranties, Limited Warranties, and Disclaimers
Limitations of Liability

Force Majeure
Exoneration

Indemnification Clause

Damages

Liquidated Damage Clauses
Term and Termination Provisions

Term/Duration of the agreement.
Renewal/Extension of the agreement.
Termination of the agreement.
Effect of expiry or termination.
Survival of certain clauses.

Having attempted to harmonize the list of the authors, I don’t see any practical value of doing so, other than to help one familiarize how to structure a contract. Also, some contractual provisions may overlap in function or purpose, hence, it may not be productive to be strict about it.

Scope, Representations and Warranties

The scope is the most substantive section of the contract, and it answers the basic journalistic questions: who, what, when, where, why, how, how much. (Espenschied, p. 138). You should pay close attention to the Scope of your contract. The second part where you should pay close attention to is the Representations and Warranties. In both these sections, there may be clauses which shift risk from one party to the other. See Allocation of Risk.

Rights and obligations

In essence, it defines the rights and obligations of the parties. The terms of a contract, however, are subject to limitations imposed by relevant laws. In the event of a breach of contract, a party may take legal action to recover damages. Common remedies include:

Claim for damages;
Specific performance, an action where the court may force the erring party to perform its obligation;
Termination of the agreement;
Restitution for any benefit to the breaching party.
Covenants

A covenant is an agreement between two parties that certain activities will be performed or not performed. Positive covenants are commitments to perform something. A negative covenant is an agreement not to perform something.

Allocation of Risk

Entrepreneurs should be critical of this section of the contract as this is where a party can allocate its risks. Risks in a transaction may be shifted to the other party by a single word or phrase.

Examples

Ex 1. Assumption of risk without qualification

Warranty. Seller warrants that the goods will conform to buyer’s specifications.

Ex 2. Assumption of risk, qualified to a certain degree

Warranty. Seller warrants that the goods will conform in all material ways to buyer’s specifications.

Comparing Ex 1 and Ex 2, “in all material ways” (modifier) reduces the risk of the seller becoming liable because of a limitation imposed by the modifier. This is an example where adding a simple phrase can shift the risk from the seller to the buyer. The warranty is no longer an unqualified warranty which is also an implied disclaimer to the Uniform Commercial Code warranty of fitness for particular purpose.

Ex 3. Limited Warranty

Seller warrants that it will use commercially reasonable efforts to comply with the terms of this Agreement. Seller specifically disclaims all other warranties, including the warranty of merchantability and the warranty of fitness for particular purpose.

Ex 4. No Warranty

Seller disclaims all warranties under this Agreement, including the warranty of merchantability and the warranty of fitness for particular purpose.

If we compare Ex. 3 and 4, we see that the seller in 4 has completely disclaimed all warranties, shifting the risk to the buyer entirely. Ex 4, is essentially an “as-is” clause. “As-is” clause indicates that the seller is offering to sell a thing in its present, existing condition. Thus, it is up to the buyer to make sure the thing he is purchasing is good.

Key takeaways

The major parts of a contract are:

Scope;
Representations and Warranties;
Express Warranties, Limited Warranties, and Disclaimers;
Limitations of Liability;
Indemnification Clauses;
Liquidated Damage Clauses;
Term and Termination Provisions.

Entrepreneurs should pay close attention to the Scope, and Representations and Warranties because there may be clauses or contractual provisions that shift risk from one party to the other.

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All you need to know about legal research

By

Sneha Mahawar

-

November 19, 2021

0

research — Image source - https://bit.ly/3jDYyCd

This article is written by Surbhi Jindal, a law student at Dr. B.R. Ambedkar National Law University, Sonipat Haryana. Through this article, she attempts to put forth the concept of legal research and its importance. She further attempts to discuss some of the effective tips to do legal research.

Table of Contents

Introduction

Legal profession cannot move forward without research and findings. The main reason behind this is the dynamic nature of law. Legal research forms an integral part in the life of law professionals, whether they are law students, lawyers, academicians, practitioners who are interested in legal knowledge. Even if you are someone preparing for a career in law and trying to understand what kind of education is needed for a lawyer, legal research will come in handy. With the changing of society and laws every day, it becomes essential to scrutinize the pool of laws and social rules. The primary purpose of legal research remains to either find the lacunas in the laws, so they are made following the society’s needs or add some vastness to the subject matter of rules to make it comprehensive.

Through this article, we shall ascertain the true meaning of research and, after that, understand the legal research. There exist different types of legal research. We shall also look at them by having a comparative analysis between them. Furthermore, in the last part of this article, I will share a few legal websites that can do legal research. Not only this, but the article will also provide you with some of the best tips to conduct effective legal research. So, let us get started.

What is research

Research means to investigate, inquire or probe in any particular area of discipline. It is a careful and detailed study of a topic to gather more information about it. This can be done by adding, deleting, updating, separating, or correcting the previous knowledge.

People intentionally or unintentionally are involved in the process of research in their day-to-day life. The human mind is full of curiosity. It conducts an inquiry about something at some point in a day. The term research is itself made up of two words, ‘Re’ and ‘Search’. Re means again, and Search is to scrutinize or probe. In other words, searching, again and again, is what we call research.

According to M Stephenson and D Slesinger in the encyclopedia of social sciences, research is

“The manipulation of things, concepts or symbols to generalize to extend, correct or verify knowledge, whether that knowledge aids in the construction of theory or the practice of an art”

There are three objectives of conducting research. These are as follows:

To contribute to the existing field of knowledge in any specified discipline.
To get a better understanding of how to formulate policies
To answer a specific area of question or fact.

After understanding the meaning of research, it would be much easier to know what legal research is and its objectives. We would also understand the various kinds of legal research. Also, it is pertinent to note that research must be done carefully and systematically with minimal errors because their outcome impacts the public at large. It must be done in an organized system so that answers to the questions are simplified.

What is legal research

Law is a subject that has broad dimensions of knowledge in society. There are several laws in India, making it difficult for a prudent man to remember them all. With the growing needs and challenges of society, laws also have to change. This means the area of law is as dynamic as our society. A complementary relationship of law and society here comes to play a vital role.

Therefore, it becomes essential to review the laws and see whether they are suited to the best interests of society or not. Here, legal research comes into play. A systematic finding and ascertainment of the law on any identified topic to advance the science of law is known as legal research.

As discussed earlier, the law is a vast area. With a mass of statutes, constant amendments, and supplementary rules and regulations, it becomes challenging for a prudent man to understand and grasp everything from it. Therefore, a probe is conducted for different underlying principles and their reasons to make advancements in the law and simplify various acts and statutes.

Legal research is a broad area that leads to an inquiry and investigation consistently made by judges, lawyers, advocates, law students, and legal researchers in the quest for a deeper and fuller understanding of the law. To support legal-decision making, legal research comes into the limelight. It identifies and retrieves the information to make the complex process simplified.

Purposes of legal research

Law is dynamic as our society is. It operates in a complex structure of society. Behavioural norms and attitudes are controlled and moulded by the law. However, with the nature of these norms changing with time and space, it becomes essential that law becomes adaptable to the changing order of society.

Legal research is also essential to write plagiarism-free content. Plagiarism is a common practice with severe consequences. Most students avoid legal research and stick to paraphrasing or plagiarizing from the content written by others. This can lead to serious consequences such as a copyright complaint, a Google penalty, deduction of marks in universities, etc. So, legal research is an essential step to avoid resorting to such practices. Some students also order free from plagiarism essays from professional writers to succeed with the tasks and help them in their assignments.

Here, in such a situation, legal research becomes essential for the ascertainment of law, clearing ambiguities in the law, identifying the weak points in a direction, and critically examining the order to ensure consistency, coherence, and stability in the law, etc. There are various purposes for which legal research is conducted. These are:

With various laws, rules, and regulations existing in society, it becomes essential to filter the laws presently applicable to the given situation. It is not easy to find the law or a judicial pronouncement at a particular point in time. Here, legal research makes the task easier. It makes the ascertainment of the law easier and much more helpful.
It is not always true that law, once made, can never bring rise to any contingency in the future. There exist some ambiguities and gaps which might be removed with the help of legal research. The nature of law is both reactive and proactive in that it answers the question arising out of such ambiguities and gaps. Apart from helping in removing ambiguities, it also helps in determining coherence, stability, and consistency.
Legal research also helps in predicting the future. It also helps to understand the social factors that had indirectly impacted the making of law. Social auditing of law helps in identifying the gap between the legal ideal and social reality. It further helps in suggesting reforms based on analytical, historical, and comparative research.

Types of legal research

The research can be broadly divided into various types by having a comparative analysis with respect to another kind of research. These are:

Descriptive and analytical legal research

On the basis of	Descriptive legal research	Analytical legal research
Meaning	Descriptive legal research indicates the phenomenon or situation under study and its various characteristics. ‘What has happened’ and ‘what is happening’ is the main focus of this research. It does not attempt to answer the question ‘why it has happened’. In other words, it does not try to find out the causes of the phenomenon, rather it seeks to describe the study as it is at present.	Analytical legal research indicates the use of already available facts and information to critically study the situation. It analyzes the whole range of facts and information critically.
Methods used	Surveys, comparative and correlational methods, other fact-finding requirements.	Already available facts and information are used for this kind of research.

Applied and fundamental legal research

On the basis of	Applied legal research	Fundamental legal research
Meaning	It aims to find the solution for the problem practically. Here, a legal researcher tries to do his research in a practical context.	It is concerned with the generalization and formulation of the theory. This research is done merely to increase the knowledge in a field of inquiry.
Also known by	Action research.	Pure research or Basic research.
Central aim	It aims to discover a solution for a pressing practical problem.	It aims to find additional information and thereby to add to the existing knowledge.

Quantitative and Qualitative legal research

On the basis of	Quantitative legal research	Qualitative legal research
Meaning	It is conducting research based on numerical data. It seeks to measure the quantity or amount. A systematic and scientific investigation of quantifiable reports for understanding their inter-relation.	It is basically concerned with the qualitative phenomenon i.e. relating to quality or characteristic. It relies on the reasoning behind various aspects of behavior.
Methods used	Questionnaires, surveys, structured interviews, and experiments.	Participant surveys, unstructured interviews, and life histories.

Conceptual and Empirical legal research

On the basis of	Conceptual legal research	Empirical legal research
Meaning	It is related to an abstract theory or idea. Generally used by philosophers and thinkers either to develop or re-interpret the existing concept.	It is done by relying upon experience or observation alone, often without due regard for any system or theory. It is also known as experimental research.
Relies upon	It relies upon the existing concept to either re-interpret it into a new concept or formulate from it.	It makes use of experiments and observations of a researcher. It uses facts and data to prove its hypothesis.

Tips to conducting an effective legal research

Legal research comes with a cost. Legal websites like Manupatra, SCC Online aren’t available for free. You would have to spend more than a penny on these sites in order to access their features. However, several authentic websites provide ways to access legal research easily without any hassle. This will be dealt with in the latter part of this article. In this section, the primary purpose is to tell you some tips for conducting effective legal research.

Always start with secondary sources. Though some people prefer to start from the primary sources, creating from secondary sources is the best way, to begin with, legal research. It helps in saving time and makes the research process effective and efficient.
You can always start with the news articles. There you will mostly get reliable information and also the opinions of different jurists.
To find the correct and reliable legal information, you can always refer to the legal websites (discussed later on) to boost your research.
Try to read judgements as they are a great source of information and can help make articles exhaustive.
Remember that whatever information you search for and find relevant for yourself, bookmark it somewhere. Otherwise, you will have to go back again and find that pertinent piece of information.
Also, you can follow the 10-minute rule by Ramanuj Mukherjee (CEO, Lawsikho) to save your time in conducting legal research. The 10-minute rule says that you do the research for 10 minutes and after it, whatever you read, write for 10 minutes. In this way, you will not miss out on any critical points while doing research and writing. This will save you a lot of time and will have a positive effect on your article.
Avoiding plagiarism at all costs. If you have used somebody’s idea in the information you’re disseminating, duly credit them. It becomes really easy if you have saved the sources. Also, you can cite the sources without facing any difficulty. There are different types of citation methods like Bluebook, Chicago, Oscola etc. In case you haven’t saved the sources, you can simply run the document through the free plagiarism checker. This tool analyzes content and lets you know the source from where your text is duplicated.

These were some of the practical tips that could help a person conduct effective and efficient legal research.

Top legal websites for legal research

Conducting legal research is very easy till one knows how to do it. However, not everyone can access legal databases such as Manupatra, SCC Online etc. Either you have to purchase them, or your college will provide access to them. But don’t worry; there are many legal websites you can refer to for your legal research. These all are user-friendly and can be of great use if one looks at its structure. A lot of information can be accessed on these websites very easily.

Indian Kanoon: The Indian Kanoon was founded by Sushant Sinha in 2008. It is one of the best tools that law students can use for understanding complex judgments simply.
Livelaw: The website Livelaw was started by Rashid M.A. in 2013. The most prominent blog in India seeks to create awareness in society by providing accurate and reliable information.
iPleaders: iPleaders was started by the two NUJS graduates Ramanuj Mukherjee and Abhudyay Aggarwal, in 2010. It is an educational start-up whose primary purpose is to make legal education accessible to all. It has its blog called iPleaders blog, which focuses on legal issues and legal questions.
Path Legal: It is a legal directory started by Sunil Joseph in 2011. The main aim of Path Legal is to provide free legal advice online, telephone consultation, free legal advice, free LPO training, legal papers etc.
Lawctopus: It was founded by the NUJS graduate Tanuj Kalia in 2010. It is one of the exclusive sites for law students that provide information regarding internships, career opportunities etc.
Bar and Bench: It was established in 2011. It is a place where comprehensive news and analysis is provided for the legal community. The entire legal spectrum of information like interviews, news, column sources are provided on this website.
SCC Online: Eastern Book Company, an internationally renowned publishing house, has its own reliable and comprehensive law reporting of the Supreme court of India through SCC Online. It has been providing its legal services across India. However, if you want to access SCC, you would have to purchase the subscription plan to avail the benefits.
Legally India: It was founded by Kian Ganz in 2009. It is one of the leading blog pages whose primary function is to report news and information that pertains to Indian law firms, Indian lawyers, international law firms and business lawyers in India.
Law Times Journal: Founded in 2014, law times journal is one of the leading online education portals devoted to the law. It believes in promoting free education in the legal sector. Besides this, it also provides resume services that help students in obtaining internships.

Conclusion

Henceforth, legal research is fundamental. To understand the intricacies of complex laws, it becomes essential for us to know the process of simplifying them. One should always start with secondary sources such as commentaries, textbooks, articles, journals, etc. From secondary, one should move on to primary sources, i.e. statutes, constitution, etc. After having a better grasp of these sources, one should analyze and look for relevant information.

There are various kinds of research, any of which can be employed to conduct research. It is a systematic understanding of the law to advance it. Research is essential both for the law and society since they both have an impact on each other. Every method has its value in research. Hurdles that come while conducting research can be best avoided by proper planning by the researcher.

References

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All you need to know about sexual harassment laws in Pakistan

By

Sneha Mahawar

-

November 19, 2021

0

Sexual harassment — Image Source - https://rb.gy/im8nlv

This article is written by Amulya Bhatia, currently pursuing BBA.LL.B from Symbiosis Law School, NOIDA. This article talks about laws for women against sexual harassment in Pakistan.

Table of Contents

Introduction

Imagine living in a country with no laws to protect its people from the evils of sexual harassment. Such was the case with Pakistan till 2010 after which they enacted the Protection Against Harassment of Women at Workplace Act, 2010 where sexual harassment was defined in depth through this legislative instrument. From a young girl assaulted by a massive crowd of over 400 people, to the horrific gang rape of a woman along the highway, Pakistan has seen a spike in the number of sexual harassment cases against women in recent times, accompanied with an inadequate legal structure. What’s worse is, when the Prime Minister of this country blames ‘vulgarity’ for an increase in sexual violence, reinforcing patriarchal ideas and failing to acknowledge the fallacies.

In light of recent incidents, the citizens of Pakistan took to the streets of the country, demanding from the government a safer atmosphere for all citizens along with an apology from the Prime Minister to apologise for his ludicrous statements, blaming the clothes of the victim and perpetrating the ideology that ‘men will be men’.

Pakistan Penal Code, 1860

In lay man’s language, sexual harassment involves unwanted behavior, which can offend, humiliate and intimidate a person while creating a hostile environment for them. This can be both verbal or physical. Prior to 2010, there was no clear definition of what sexual harassment would entail after which there were several amendments made to the provisions of the Pakistan Penal Code, 1860 to strengthen the laws.

Section 354: Assault or criminal force to woman with intent to outrage her modesty

This Section provides for when criminal force is used with the intention of outraging a woman’s modesty and states that punishment for the same shall extend upto two years of imprisonment, or fine, or both.

Section 354A: Assault or use of criminal force to woman and stripping her of her clothes

This Section lays down the punishment of imprisonment for life along with a fine for when criminal force is used to strip a woman of her clothes, exposing her to the public view.

Section 366-A: Procuration of a minor girl

This section is concerned with when a minor girl, below the age of eighteen, is by any means induced to get involved in illicit sexual intercourse, and this offence is punishable with upto 10 years of imprisonment along with a fine.

Section 375: Rape

This Section defines the circumstances in which sexual intercourse would amount to rape which include against her will, without her ‘free’ consent or consent based on misrepresentation, or when the girl is under sixteen years of age.

Section 376: Punishment for rape

This Section provides for punishment of death or imprisonment of either description for a term which shall not be less that ten years or more, than twenty-five years and shall also be liable to fine or the offence of rape, as provided in section 375

Section 509: Insulting modesty or causing sexual harassment

This Section defines insulting a woman’s modesty as making sounds, gestures, or acting with the intention of intruding upon the privacy of the woman. Sexual harassment has also been defined under this Section for the first time. It also lays down the punishment for these crimes.

Protection against Harassment of Women at Workplace Act, 2010

History has proved that the deep-rooted issue of harassment is not a foreign concept to Pakistan. The country still comprises a patriarchal set-up, with men being given the dominant status, increasing the scope of harassment of women at the workplace. Due to this, the Protection against Harassment of Women at Workplace Act, 2010 was enacted in Pakistan, with the objective of providing legal protection to women and also reducing the gender gap that exists in the professional environment due to this harassment. Sexual harassment at workplace was finally recognised as not just an issue, but a punishable crime. This Act is based on the principle of providing equal opportunity to men and women without the fear of being discriminated against.

This Act was welcomed with open arms as it was the first time that the term sexual harassment was properly defined in Pakistan and the citizens were safeguarded against this social evil. However, not too long after its enactment, the moral and logical fallacies with the Act started to emerge and the improper methods of implementation began to be questioned.

Definition of sexual harassment

Section 2(h) of the Act defines sexual harassment as any kind of unwelcoming sexual advances or requests for sexual favors, either physical or verbal, which interfere with work or create a hostile or intimidating environment for one.

In the recent judgment, Nadia Naz vs. President of Islamic Republic of Pakistan (2021), the Court observed that this definition only covers a small fraction of what harassment is. Sexually coloured remarks, gazing, voyeurism, stalking have not been included, limiting not just the scope of the definition but subsequently invalidating the objective behind the enactment of this Act. With flaws in the definition of the ‘sexual harassment’, the entire Act falls flat.

Definition of workplace

What exactly falls under the ambit of the term ‘workplace’, which has been defined under Section 2(n) of the Act has also faced criticism. The Act defines it as “the place of work or the premises where an organization or employer operates and includes building, factory, open area or a larger geographical area where the activities of the organization or of employer are carried out and including any situation that is linked to official work or official activity outside the office”. This definition fails to take into account grievances faced by domestic workers. Additionally, it would also not include cases of harassment faced by people during the course of travelling to and from workplaces. There are no reported cases based on the above mentioned situations, which leaves it upon the judiciary to interpret the definition as per their discretion.

Definition of complainant

Section 2(e) of the Act states that a complainant can be a man or a woman who has been aggrieved, meaning only the victim of sexual harassment can make a complain. This Section does not take into account the mental trauma that a person who has experienced sexual harassment is going through which has a direct bearing on being able to speak up and talk about such an incident. What makes this worse is that there already exists a difference in power dynamics at a workplace which makes it even more difficult to file a complaint. This Act must take into consideration possible situations wherein a person on behalf of the victim is given the power to file a complaint.

Lack of inclusion of transgender people

Deeply embedded homophobic and transphobic attitude combined with an inadequate legal structure to protect the LGBTQ+ community has continued to grossly violate the basic human rights of people belonging to this community. Pakistan, however, was the first Asian country to legally recognise a self-perceived gender identity. The Parliament of Pakistan recognised transgender persons as a third gender in 2009 and passed the Transgender Persons (Protection of Rights) Act, 2018 on May 8, 2018. While this Act appears to be unique and progressive in several aspects, and rightly so, it lacks implementation, failing to provide to this community the protection they need.

Section 2(e) of the Protection against Harassment of Women at Workplace Act, 2010, defines a ‘complainant’ as a man or woman, disregarding the existence of transgender persons. This is violative of the basic Right to Equality and also comes across as a shock because of the progressive legislation that Pakistan has passed to safeguard transgender persons.

Cybercrime

The advent of technology and the internet has brought major changes in how the world operates with multifaceted advantages. However, it would be naïve to ignore the misuse of the internet maliciously. Sadly, what was meant to improve communication has become a platform for sexual harassment.

Pakistan has enacted the Prevention of Electronic Crimes Act, 2016 to protect its citizens from the plethora of cybercrimes but does not explicitly define ‘sexual harassment in context of the online world.

Sexual harassment at the workplace can also take place through online modes which have not found a place in the Protection against Harassment of Women at Workplace Act, 2010 and have the potential to be a possible loophole, enabling sexual offenders.

Functioning of an inquiry committee

Section 3 of the Act provides for all organisations to set up an Inquiry Committee. Such a committee must consist of three members, with at least one female member. The purpose behind this committee is to ensure that when a complaint is received, the inquiry process is conducted fairly, without any bias.

While this Section in itself is commendable, the role of the committee cannot be limited to conducting the enquiry process fairly, but also to direct regular assessments of the workplace. The Section must also allow for there to be anonymous complaints keeping in mind the mental trauma that a victim of sexual harassment experiences, making it difficult to speak up about such incidents. Moreover, there also exists the fear of not being taken seriously, losing their job, social retaliation, or just being tagged as a trouble maker which can more often than not prevent people from reporting cases of sexual harassment. A provision for daily checks within the workplace can make the atmosphere safer and also tackle the problem of lack of reporting.

Problem with implementation

Is the enactment of legislation enough to tackle a social evil like sexual harassment? The aim behind any legislation is to create a peaceful and just society by way of establishing discipline through rules and regulations. Unfortunately, the laws hold no value if there is a lack of implementation. It is only when the implementation of the laws is carried out with utmost sincerity that the objective behind introducing laws is fulfilled.

Pakistan may have taken a huge leap and enacted The Protection against Harassment of Women at Workplace Act, 2010, but is yet to work on its execution. Section 11 of the Act requires an employer to display and circulate a code of conduct on sexual harassment, both in English and Urdu. However, there is absolutely no provision for checks on behalf of the government, to ensure that such a code of conduct has been established by all organizations. Similarly, the law might mandate the creation of an inquiry committee.

Recommendations

While changes in the legal structure are not adequate to change the reality that persists in Pakistan and there is a requirement to mould the social stigma attached with sexual harassment and victims of sexual harassment, there are some recommendations that can improve the state of existing laws, making the state of the country better:

Sexual harassment is an extremely sensitive topic and it is imperative to understand the nuances and impact that such incidents can have on the mental health of the person who experiences it. Thereby, it is essential that such matters are dealt with utmost care which creates a need to sensitise the citizens. At school level as well as the workplace, there is a requirement to actively and openly converse about these issues.
Along with sensitising, training sessions regarding expected and acceptable standards of male-female interaction at the workplace should be made an integral part of the Act. The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal Act), 2012 in India makes such trainings mandatory.
Discrimnation in terms of who can complain of sexual harassment shouldn’t exist at all and every law in the country must be based on the principle of equality.
For the purpose of formation of an inquiry committee, it would be appreciable if there is inclusion of at least one member who may have prior experience of dealing with sexual harassment cases and understands the complexities that come along with it to ease the entire process.
There is an immediate need to educate the citizens of the country of the rights that they have. It is essential to create awareness from the root level because it is only when there is awareness that the citizens will be able to exercise their rights.
The most important recommendation would be to ensure that all laws in places are genuinely and fervently followed. None of the laws or any of the above recommendations hold any significance if they are not implemented. Lack of implementation gives liberty to the people to disobey the law and do as they please.

Conclusion

A country or society’s legal framework and its cultural ethos aren’t incongruous but are tethered together in a dialectical relationship; a relationship in which both of these forces afflict and influence the other. Even if the state has laws set in place that do, on paper, protect women from sexual violence, but the cultural and social disposition these laws exist in, blatantly brutalizes women, the laws don’t hold much weight and the social malady of sexual harassment continues to persist and plague the state.

Beliefs that about the onus of sexual assault and violence falling upon the victims of the act owing of what clothes they wear and how much skin they exhibit, and not the men who commit these atrocities is an indication of a society in which the laws and the cultural and social consciousness aren’t in consonance with each other. This is bound to not only fester but they encourage the growth of the societal tumour that is sexual assault. The first step is to do away with the social stigma attached to sexual harassment.

References

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

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Marital rape in India : a much needed reform

By

Sneha Mahawar

-

November 19, 2021

0

Virtual rape — Image Source: https://rb.gy/temyqx

This article is written by Dnyaneshwari Patil from RTMNU Babasaheb Ambedkar College of Law, Nagpur. This article deals with the status of marital rape in India. The origin of the patriarchal concepts and the arguments and reasons cited by the state for not criminalizing marital rape in India.

Table of Contents

Introduction

Consent is like a boxing sport; if one person does not have consent, the other person commits a crime. The same goes for consent for sexual intercourse. If a woman does not agree to it, then the man is considered to have committed rape. However, when a married woman gets raped by her husband, it does not amount to a crime. The consent of a wife is not considered necessary when it comes to sexual intercourse between a married couple. It is 2021, and India remains among the 36 countries where it is not a crime for a man to rape his wife. Devaluing the rape experience of a wife accentuates the rape culture and misogynistic attitudes in India. Marital rape is a manifestation of domestic violence. In India, 70 percent of women are the victims of domestic violence, according to National Crime Records Bureau’s (NCRB) ‘Crime in India’ 2019. Even though several amendments are made in criminal law to protect women, the non-criminalization of marital rape in India still devalues, dehumanizes, and undervalue the dignity and human right of women.

Reason for the non-criminalisation of marital rape

The non-criminalization of marital rape started with an archaic doctrine of the British era. In the common law system, a wife is not a complete juridical person and has limited rights. Sir William Blackstone described the doctrine of coverture as “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-French a feme-covert….”

Thus, Under the doctrine of coverture, a woman was legally considered the chattel of her husband, his possession. Any property the woman might hold before her marriage became her husband’s on her wedding day, and she had no legal right to appear in court, to sign contracts or to do business. the notion of marital rape is highly influenced by this doctrine, highlighting the merging of women’s identity with the husband. The drafting of provisions regarding rape offences was done when women were not considered as a separate entity from men. The rape norms are based on the patriarchal established doctrine, which did not recognize men and women as equals.

Status of marital rape in India

Section 375 of the Indian Penal Code defines rape as an act of sexual intercourse with a woman without her consent, against her will, or under any kind of misconception or fear, then the man is guilty of rape. The consent is immaterial if the woman is under the age of 16. However, Exception 2 of Section 375 emanates the culture of non-criminalization of marital rape. Exception 2 provides that sexual intercourse by a man with his wife is not rape; however, the wife being under the age of 15 would amount to rape. Exception 2 exempts the unwilling intercourse between husband and wife from the scope of the definition of rape if the wife is over 15 years of age (currently 18 years). Thus, marriage between husband and wife implies perpetual consent to sexual intercourse once entered into a marital relation. Marital rape is the epitome of what we call “implied consent”.

Since the year 1997, several petitions have been filed in the Supreme Court regarding the enlargement of the definition of Section 375. The petitions filed have prayed that “sexual intercourse” should include all forms of penetration such as penile/ vaginal penetration, penile/oral penetration, penile/anal penetration, finger/anal penetration, finger/vaginal penetration, and object/vaginal penetration.

The petition finally came to be decided in the judgment of Sakshi v. Union of India (2004). The issue raised was to include all forms of sexual intercourse within the ambit of rape defined in Section 375. However, the Supreme Court upheld the existing definition of rape and refused to include other forms of penetration within the purview of rape. The Court reasoned that changing the definition would create ambiguity and confusion, which would not be in the interest of society at large.

After the occurrence of one of the most barbaric acts against a woman, i.e. Nirbhaya gang rape and murder, the Parliament finally woke up and constituted the justice J.S Verma Committee. The committee formed a report which formed the basis of the Criminal Law (Amendment) Act of 2013, which accepted the recommendations of the J.S Verma committee. Changes, as suggested above, were brought under the definition of rape in Section 375 of IPC. However, the advice regarding the criminalization of marital rape was not accepted. The amended definition of Section 375 now conforms with the prayers mentioned in the case of the Sakshi batch of the petition.

Another batch of writ petitions came to be decided by the Supreme Court in Independent Thought v. Union of India (2017), where it argued that Exception 2 was not amended and resulted in a situation that permits forced sexual intercourse by a husband with a minor wife between the ages of 15 and 18 and violated any girl’s basic fundamental rights due to child marriage. Therefore, the Supreme Court struck down the previous provision and increased the age for giving consent to sexual intercourse within marriages to 18.

Protection under Domestic Violence Act, 2005

The Protection of Women from Domestic Violence Act (2005) regards marital rape as a form of domestic violence. The Act of 2005 protects women from any physical or mental cruelties of all forms, including sexual abuses. Under the Domestic Violence Act, the offence of marital rape provides for a lesser jail term than non-marital rape. The remedy provided under the domestic violence act is civil and not criminal. This is the only remedy available to the victim for protection from marital rapes. The magistrate has the power to appoint protection officers under the 2005 Act to protect wives or live-in partners from domestic violence. A woman who has been abused can also seek judicial separation from her husband. However, even if it does not criminalize the offence, it still shifted the state approach from non-interference into family relations to protecting women in their domestic environment.

Reasons cited for not criminalizing marital rape

“It is against the Indian culture”

The former Chief Justice of India, Dipak Mishra, on marital rape, said, “I don’t think it should be regarded as an offence in India. In villages, It will create absolute anarchy in many families, and our country is sustaining itself because of the family platform which upholds family values.” He also mentioned that problems like illiteracy, lack of financial empowerment of the majority of females, the mindset of the society, vast diversity, poverty, etc., needs to be considered before criminalizing marital rape. He argued that people blindly following western customs must understand that cultural and socio-economic differences between the two regions create an environment in which India is not ready for criminalizing marital rape. The fear of marriage falling apart in India makes the government reluctant to criminalize marital rape.

However, in Independent Though v. Union of India, the SC mentioned that if divorce and judicial separation cannot destroy the institution of marriage, then criminalizing marital rape would surely not destroy it. In Nimeshbhai Bharatbhai Desai vs State Of Gujarat (2018), the Gujarat High Court held that marital rape violates the trust and confidence within the marriage, which damaged the institution of marriage.

Women’s perpetual implied consent after marriage

The notion of perpetual implied consent is based on deeply rooted patriarchal thinking. It dated back to the 1700s when women were considered chattel to their husbands. But in the 21st century, the provision discriminates against women. Women should have the right to autonomy and physical integrity regardless of whether she is married or not.

Women might misuse the law on marital rape against men

The legislature believes that criminalizing marital rape would give an easy tool in the hands of women for harassing their husbands. The women will falsely accuse their husbands of any sexual act between them; the discretion, whether it is a marital rape or not, solely lies on women. However, even if some women may misuse the law, it is the judiciary’s duty to make out the false cases and dispose of them with an appropriate penalty. Instead of focusing on protecting women, the government has shifted the injustice to the abuser who is being presented as a victim of a false complaint.

The Indian Constitution and marital rape

Exception 2 is a clear violation of women’s fundamental rights of equality, dignity, and privacy. Article 14 of the Indian Constitution guarantees equal protection to all its citizens, and any classification should be based on intelligible differentia. However, the exception violates the rights of married women who are the victims of marital rape by treating them differently from their husbands and other victims of rape. The classification based on marital status is not a reasonable classification, and hence it infringes Article 14.

Article 21 guarantees the protection of life and liberty. The right to life is not restricted to mere animal existence but also includes the right to live with dignity (Maneka Gandhi Case). Exception 2 violates a host of rights as referred to in Article 21, such as the right to privacy, right to bodily self-determination, right to live with dignity, and right to good health. In several judgments, the SC has held that the offence of rape violates the right to live with the human dignity of the victim of the crime. In Bodhisattwa Gautam v. Subhra Chakraborty (1995), the SC said that “Rape is thus not only a crime against the person of a woman, but it is also a crime against the entire society. It destroys the whole psychology of a woman and pushes her into deep emotional crises.” and hence it is violative of Article 21 of the Constitution.

Conclusion

The exemption in the Indian Penal Code stems from a long outdated notion of women. The women in the past were regarded as no more than the property of their husbands. The idea was due to the deeply-rooted patriarchy in the world that needs to be changed in today’s world. The government should aim to protect the bodily autonomy of all women irrespective of whether they are married or not. The argument that it would destroy the institution of marriage is not a reasonable contention. When a woman at home is not being treated with dignity and respect at that moment only, the failure of the marital relation reflects. The state should enter into the realm of home and bring the most atrocious crime under the purview of state laws. The license given to the husband for forced sex is a total negation of a woman’s self-worth. Therefore, there is a much-needed reform for criminalizing marital rape in India to protect women’s integrity and dignity in India.

Reference

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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Importance of termination clause in IP agreements

By

Oishika Banerji

-

November 19, 2021

0

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

Table of Contents

Introduction

Intellectual property (IP) that deals with the protection of IP rights is an emerging branch of law. Rights related to original works in respect of music, art, cinematograph films, designs, inventions etc. which with the owner of the rights are covered under the ambit of IP rights. The intent of the legislature to legislate laws with respect to intellectual property is that, firstly people are encouraged to create works that will ultimately benefit society. Secondly, to ensure that the rights of such creator, inventor or owner of the rights is protected and thirdly to generate revenue.

In order to ensure protection of intellectual property rights, several contracts are executed by the owner of such rights. Some of the examples of IP agreements are Assignment Agreement, Licensing Agreement, Distribution of rights Agreement, Non-Disclosure Agreement, Franchise Agreement, Work for Hire Agreement, Publishing Agreement.

When parties enter into IP agreements, they are well aware of the fact that the stakes are high and they generally want the terms and conditions to benefit their individual interests. In such an arrangement, it is always safe to have an agreement which is precise and free from any kind of ambiguity. When parties enter into an agreement, they bind themselves into a legal obligation and they are free from such legal obligation only when they terminate the agreement or if the agreement expires. Such termination occurs as per the termination clause specified in the agreement. Now, let’s take a deep dive to understand what is a termination clause and what role does it play in an IP agreement.

What is a Termination Clause?

Generally, all agreements have a specified term until when it shall be enforceable. However, parties can also choose to make their association for perpetuity i.e., for a continued period of time.

Termination clause is nothing but predetermined terms and conditions upon which the parties can cancel i.e., terminate the agreement. This clause states the rules that shall apply whenever a party would want to terminate the agreement. It also lays down who may terminate the agreement and on what grounds.

It is advised to always negotiate the terms under the termination clause and carefully verify the same with an advocate in order to ensure that the terms are enforceable and fair. Additionally, one must always keep in mind that if the termination clause is used incorrectly, it may result in a legal conflict.

Purpose of Termination Clause

Avoids future conflict:

The purpose of inclusion of a termination clause in the agreement is to rule out all the issues that surround breach of agreement. We must understand that not all breaches are equal, termination clauses act like a rule book stating rules on which a termination of agreement shall take effect.

Determines when can an agreement be terminated:

Another purpose of this clause is, it specifies the date on which the agreement shall cease to exist and the grounds on which such termination can be effectuated .

Determines who can terminate the agreement:

The third purpose is that, it lays down who can terminate the agreement when such circumstances arise.

Kinds of Termination Clause

A party’s right to terminate the agreement is dependent on the contract law or the terms of the agreement itself. The termination clause is also known as the Severance Clause. This clause allows the parties to terminate an agreement without causing any breach in the contract. It paves way for the parties to avoid a dispute and end the association by terminating the agreement under the predetermined termination clause. There are generally two kinds of termination, one being termination for convenience and other being termination for a cause. Now let’s understand the two in detail.

Termination for Convenience:

As the name itself suggests, this type of termination happens when either party feels it is inconvenient for them to continue the association. When such an event arises, the party becomes eligible to terminate the agreement for convenience, provided, the Termination clause in the agreement expressly allows the parties to do so.

Termination for a Cause:

Termination for a cause happens when there is a particular reason because of which either party intends to terminate the agreement. In an agreement, such a reason should generally fall under ‘material breach’. Now, what shall qualify as material breach of the agreement is generally determined by the terms and conditions specified in the agreement. Generally, when one party fails to perform the duties as specified in the agreement due to their own negligence and not due to unforeseen situations, it is termed as material breach. Before such termination occurs, a specified period of time is provided to cure such material breach. And after expiry of such specified time, the affected party can terminate the agreement for a cause.

How are IP agreements terminated?

When will the term of the agreement expire?

When the agreement has an expressly specified date on which the agreement is going to end, such agreement is automatically terminated on such date. However, such termination doesn’t happen if the parties have another understanding. Let’s understand this with an example, if an agreement’s term is of 5 years, once this term of 5 years ends, it will automatically get terminated. However, if the parties mutually agree, they can extend the term of such agreement.

Failure to perform their duty

When either party fails to perform the duty or task assigned to them under the agreement which ultimately results in material breach and fails to cure this material breach within the time stipulated in the agreement, the agreement can be terminated by the other party.

Breach

If a party has committed a breach of the terms and conditions agreed upon by the parties and doesn’t cure it within the time stipulated then the other party can terminate the agreement after sending a notice to the other party mentioning the reason for such termination.

Force Majeure

This clause is generally a separate clause added in the agreement and does not form a part of the Termination clause. This clause comes into the picture when an unforeseen event happens, for example earthquake or floods and the parties are unable to perform the obligations under the agreement. In such an event, parties can choose to either wait till the stipulated time specified in the clause and continue with the agreement or terminate it depending upon the circumstances and understanding between the parties.

Why is termination clause important in an IP agreement?

Prevents future confusion

One of the most important roles of a termination clause in IP agreements is that it avoids future confusion and ambiguity between the parties with respect to the terms and conditions of the agreement. Parties are well informed about the date on which the agreement shall cease to exist, the conditions which can trigger a party to terminate the agreement and who has the right to terminate the agreement if such circumstance arises. This in turn helps the parties to prevent litigation because the parties cannot later have contradictory interpretations of whether the agreement has been terminated or whether it still exists and is enforceable.

Protects commercial interest of the parties

IP agreements often involve huge monetary stakes and since the stakes are high, it becomes essential to leave no room for confusion or ambiguities for the terms of such a crucial agreement. Once the parties agree to terminate the agreement, the parties can stop the further exploitation of the intellectual property and the parties get quantum meruit. This makes the question of consideration clear from both the ends.

Protection of rights

Termination of an IP agreement means that the party exploiting the rights accruing from the intellectual property in lieu of consideration shall no longer be entitled to exploit it. He will have to return all the materials to the owner of the rights or to the authorized person. Additionally, the IP rights automatically reverts back to the owner of such rights. Once the agreement is terminated, such party becomes the unauthorized person. In case if this unauthorized party continues to exploit the IP rights after the termination of the contract, such exploitation of IP rights shall amount to infringement. Therefore, the termination clause ensures that the IP owners rights are protected even after the agreement ceases to exist. After the agreement gets terminated, the parties are free to enter into a contract with another party.

Discharges parties from obligations

Once the IP agreement gets terminated, the parties are discharged from all the obligations unless otherwise agreed upon between the parties. For example, if there’s an agreement between a scriptwriter and a producer. If the agreement gets terminated before the script is complete, the script writer can immediately stop writing and start negotiating with a different producer. Similarly, such a termination may allow the producer to stop further development for the film. Hence, a well-drafted termination clause is an advantage for both the parties and it legitimately discharges their obligations under the agreement.

Conclusion

After thoroughly analysing the role of a termination clause in IP agreements, it is evident that the lack of a precise and well-drafted termination clause can result in irreversible legal and monetary repercussions. And since the stakes are extremely high, it is always advisable to have a tailor made, full proof agreement. Reason is, no party would want to fall prey to the risk of lengthy litigation or lose out on potential revenue-generating from intellectual property to ambiguities over terms of the agreement. While preparing an IP agreement, one must always keep the parties’ interests in mind and try to prevent their rights from being challenged in unforeseen disputes. Hence, it is in the interest of both the parties to negotiate the termination clause and expressly specify terms and conditions of the IP agreement.

References

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

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

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All you need to know about issues with new labour codes

By

Diganth Raj Sehgal

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November 19, 2021

0

Child labour 2. Credit AWorldAtSchool_Flickr — Image source - https://bit.ly/38hhyRR

This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail the provisions of the four new labour codes and the issues thereunder.

Table of Contents

Introduction

The Indian labour law system has been identified as one of the most complex labour systems in the world because it is overflooded with numerous regulations and compliances. This complex system includes more than 100 state laws and 40 central laws which have several additional regulations and compliances annexed to it.

To tackle this issue and form a uniform labour law regime, the Central Government enacted four new labour codes in 2019 and 2020. The enactment of these labour codes will thereby simplify and modernise the existing labour law regime in the country. These labour codes intend to consolidate 29 existing labour law legislations in India and regulate four main areas of the labour law regime, i.e., wages, industrial relations, social security and occupational health, safety and working conditions.

Four Modern labour codes

The Central Government in 2019 and 2020, enacted four new labour codes. These labour codes have been discussed in brief below:

The Code on Wages, 2019

The Code on Wages, 2019 was the first code that was enacted by the Labour Ministry and this marked the emergence of the modern-day labour reforms in India. The Code has compiled provisions regarding minimum wages, payment of wages, payment of bonus, payment of dues etc.

The Industrial Relation Code, 2020

The Industrial Relations Code, 2020 contains provisions regarding the regulation of trade unions, passing of standing orders and provides for a mechanism for settlement of disputes arising at the industrial establishments.

The Occupational Safety, Health, and Working Conditions Code, 2020

The Occupational Safety, Health and Working Conditions Code, 2020 contains provisions regarding registration of certain establishments, maintenance of health, safety and proper working conditions at the establishment, hours of work, leaves etc.

The Code on Social Security, 2020

The Code on Social Security, 2020 contains provisions regarding social security organisation, employees provident fund, employees state insurance corporation, gratuity, maternity benefits etc.

Issues with new labour codes

Common issues in the four labour codes

Definition of ‘appropriate government’

The new Labour Codes do not provide clarity over the jurisdiction of the appropriate government. The definitions vary from Code to Code. Some codes state that the ‘appropriate government’ will be the Central Government for public sector undertakings (PSU) only if the Central Government has 50% or more shareholding in the PSU. On the other hand, under some codes, the Central Government will still be the appropriate government if it’s holding in PSU is less than 50%. The issue herein is that how can the Central Government be empowered to take decisions by acting as the ‘appropriate government’ if it does not have the controlling and managing power over a PSU, i.e., a stake of less than 50%.

Government Intervention in allowing exemptions to establishments

The Industrial Relation Code allows for the exemption of new industrial establishments or any class of establishments from any or all of its provisions if the same is deemed necessary by the State or Central Government in the public interest. Thus, giving such a wide power to the State and Central Government can result in a heavy intervention of government authorities in the functioning of an industrial establishment and thereby may affect the work culture and output percentage of that establishment.

Labour Code does not cover all types of workers

The application of the new labour codes is not at par with the previous labour codes. The new labour codes fail to cover certain employers. The Industrial Relation Code applies to the establishment with a different threshold for lay-off, retrenchment, and other standing orders, whereas the Occupational Safety Code covers an establishment that has 10-20 employed workers. Also, both codes allow the government to exempt certain establishments which brings forth the issue as to which establishment is covered and up to what extent. When a threshold is mentioned to recognise an industrial establishment, several establishments try to avoid maintaining the threshold to escape labour compliances. It has been argued that the application of labour laws based on the number of employees is desirable to reduce the compliance burden on infant industries and to promote their economic growth.

Key issues under the Code on Wages

Division according to areas

The Code on Wages empowers the Central Government to divide the workforce into three different categories, i.e, metropolitan, semi- metropolitan, and rural. This will result in confusion and will complicate the process of classification as previously available data is categorised in two parts only, i.e., urban and rural areas.

Unwanted technical committee

The Code on Wages empowers the Central Government to categorise employees into 4 categories, i.e., unskilled, semi-skilled, skilled, and highly skilled. This categorisation is to be made on the recommendation of the technical committee. However, the provisions of the Code already define the essential qualification required for the classification as unskilled, semi-skilled, skilled, and highly skilled. Thus, the role of the technical committee in ascertaining something that is pre-determined can be termed as unsound and illogical.

Increase in work Hours

The Code on Wages has significantly increased the number of working hours from 8 hours to 12 hours. This provision of the Code is against the standard practice of 8 hours and therefore is a complete violation of the rules laid down by the International Labour Organisation under the Hours of Work (Industry) Convention, 1919. This Convention limits working hours to 48 hours per week and 8 hours per day. This provision can easily be exploited by the employers and they can increase the work timings and the work shifts.

Key issues under the Industrial Relations Code, 2020

Process of strike and lock-outs

The Industrial Relation Code, 2020 has complicated the process to perform strikes and lock-outs. The IRC 2020 has mandated a 60-days prior notice to the performance of a strike or a lockout. In other words, no strike or lockout can be performed without giving 60 days of prior notice. In case conciliation proceedings regarding the dispute are pending before the proceedings, a 14-days prior notice is to be given. Therefore, this complicated and time-consuming process can directly affect the credibility and effectiveness of strikes or lock-outs because, by the time the employees can perform a strike, the essence/reason behind it is lost. Also, the employer may take measures to ensure the failure of such strikes or lock-outs.

Award of the Tribunal

The IRC 2020 empowers the Central Government to defer from the award given by the tribunal on the grounds of public interest, impact on the nation’s economy and social justice. This provision can be misused by the Government in cases wherein the Government itself is a party to the dispute. This also raises the concern over the separation of power between the executive and judiciary.

Restricting the formation of Negotiation Council

The IRC 2020, introduced the ‘Sole Negotiating Union’ which allows only those trade unions to negotiate with the employer that has more than 51% of the employees of the establishment as its members. In case registered trade unions are unable to fulfil these criteria then a negotiation council needs to be formed by a trade union that has more than 20% of the employees of the establishment as its members. The issue herein is that the Code does not allow employees to form their own negotiation councils irrespective of whether they are part of a trade union or not. Also, it fails to consider situations wherein multiple trade unions could have the jurisdiction to form negotiation councils due to being represented by 20% or more of the workforce of the same establishment.

The exploitation of fixed-term employment

The IRC 2020 introduced provisions for fixed-term employment, i.e., contractual relationships between the employer and the employee, for employing a worker for a fixed duration. The main issue that arises here is that an employee who is not a permanent employee may face the challenge of job insecurity as the power to renew the contract is with the employer. So, to continue with the contract, an employee will be hesitant in raising issues related to working conditions and unfair work practices by the employer because their future in the establishment depends on the whim and fancy of the employer.

Key issues with the Code on Social Security, 2020

Recommendations of the 2nd National Commission on Labour, 2002

The main purpose of the Code on Social Security is to simplify and consolidate the existing laws in line with the Recommendations of the 2nd National Commission on Labour. However, it is pertinent to note that the new Code was reluctant in implementing these recommendations.

The NCL recommendations state that the social security system should apply to all establishments irrespective of size but the new Code has introduced thresholds for the applicability of social security schemes based on the size of the establishment. The Code makes the benefits of pension and gratuity mandatory for those establishments that have a specific threshold of 10-20 employees. The Code overlooked those establishments that have less than 10 employees or employees associated with the unorganized sector. The Periodic Labour Force Survey Report (2018-19) indicates that 70% of the regular wage/salaried employees in the non-agricultural sector did not have a written contract, and 52% did not have any social security benefit.

The NCL recommendations also included the removal of the wage ceiling limit. But the Code has failed to do so. It continues to differentiate employees based on the different wages paid to different categories of employees within the same establishment.

Schemes for ‘gig workers’ and ‘platform workers’

The Social Security Code introduces the definition of ‘gig worker’ and ‘platform worker’. The Code differentiated various kinds of workers including gig workers, platform workers, unorganized workers, and self-employed workers. The Code lays down different schemes for different kinds of workers but has failed to provide specific schemes for these kinds of workers.

Gratuity for fixed-term employees

The Code provides for the payment of gratuity to the employees who have been employed for a continuous period of five years or more. However, this period will not apply if the contract term of a fixed-term worker expires. However, the Industrial Relation Code provides that an employee is eligible for gratuity if he has completed one year of employment with the employer. It can be seen that both the Codes have different eligibility criteria for gratuity. Therefore, gratuity for a fixed-term worker is not clear and there is a need for uniform rules to be in place.

Issues with the Code on Occupational Safety, Health and Working Conditions, 2020

Special provisions for specific establishments

Provisions for regulating and maintaining the specific establishments are absent in the Code. The health and safety measures should be made applicable to all establishments. But there are certain categories of hazardous establishments to which the health and safety measures under the Code are not extended to. The Code needs to include special provisions for such establishments so as to improve the efficiency of the Code in the long run.

Bar on the jurisdiction of civil courts

The Code bars employers and employees from exercising the jurisdiction of civil courts for settlement of disputes. In case of a dispute, the parties have to present their case before the Inspector. If the party is aggrieved by the decision of the Inspector, then they have the right to appeal directly to the High Court and ultimately to the Supreme Court. This will increase the burden of High Courts and the Supreme Court which are already flooded with writ petitions and appeals.

Conclusion

The new labour codes can be termed as the much-needed improvements to the current labour regime in the country. The new labour reforms finally overtake the redundant existing labour law regime in terms of simplifying and modernising the labour system. But it is pertinent to note that these labour reforms are more employer-friendly. It lays down certain provisions by which an employer can exploit the rights of the workers. Although the new reforms have simplified various compliances, they have also created several confusions by not defining key terms in the codes. Only time will tell how effective these Codes will be in the long run.

References

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Incorporating blockchain into intellectual property laws and practices

By

Abanti Bose

-

November 19, 2021

0

Blockchain1 (1) — Image source-https://rb.gy/ss5v29

This article is written by Anjali Baskar, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Zigishu Singh (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Table of Contents

Introduction

What do “Bernstein IP”, “Artizyou” and “IPwe” have in common? (They are all Intellectual Property-management systems that take the help of Blockchain technology.) Blockchain technology has been used to vote digitally, share data, transfer car/land titles and transfer money, but what exactly does Blockchain mean? Blockchain is a decentralised security system, used to store information controlled by all users equally. Digital currencies like Bitcoin use this digital ledger technology to facilitate secure transactions between netizens. Blockchain does not require regular assistance, which is useful for lawyers when validating transactions. Some argue that it is easy to establish the integrity of the data just by just a piece of information, whether physically or online. Blockchain not only preserves the data but allows users to update the database in real-time, while millions of IP-based transactions are taking place simultaneously. One of the basic tenets of intellectual property rights is to protect ownership, and Blockchain technology can be used to verify who is the authentic owner, no matter how many times the rights have been transferred through various blocks of data. Artists use NFTs(Non-fungible Tokens, A blockchain-based technology) to protect their digital artistic work, and NFTs run on this Blockchain technology, even though they don’t act as copyright themselves. Blockchain is also known for its versatile uses, because many kinds of data can be added to it, like videos, photos, and contractual and design-related files.

Merits of applying blockchain technology

Even though data privacy laws are tough to implement, Blockchain offers a path to protect, clear and store the evidence of creatorship at the time of registration of the particular intellectual property (like a trademark of a new fashion brand) or in a court dispute. Intellectual property lawyers can use the evidence stored on this safe mechanism to argue their case to the judge. Since it is a technology, it makes complex legal procedures like registration faster, thus saving costs. Let’s say Saregama, a renowned music label wants to issue a license for a particular song to be used in a film. Blockchain allows this licensing agreement to be authenticated through smart contracts because it tracks whether there was any distribution of unregistered copyright. In other words, it provides evidence of genuine and first use trade-in the requisite industry. Digital artists can receive their payments from their art if it is registered under copyright, whenever it is being used. Blockchain, here, is essentially used as tracking software, informing the user if any counterfeit goods are being sold. This comprehensive data system is useful for intellectual property registers or offices because they can find out when a patent was first filed, when it was used and licensed, thus maintaining a record of the cycle of the right attached to the original owner. When mergers and acquisitions are being carried out by corporate lawyers, there are a lot of audits and transactions related to intellectual property that needs to be sorted out, i.e. which company owns what; this can be sped up by looking at the cycle Blockchain has stored. Let’s say Varun created a work eligible for copyright protection but does not want to reveal his name. How will he generate revenue from his creation? Anonymous, orphan and pseudonymous authors can use intermediaries like Blockchain or other digital ledger technologies to enforce that copyright before the courts while keeping their identity verified, but nameless. Now that we’ve discussed the broad advantages of the real-life application of Blockchain technology to the dynamic IPR field, we can discuss it in more detail.

“Smart” contracts

IP-based transactions involve a lot of detailed steps. For example: When one party wants to buy a patent from another party, commercials need to be discussed, an assignment agreement should be signed and the patent office needs to be informed of the sale. All these usually take time, and counsels representing both parties usually go back and forth to alter certain clauses to the mutual satisfaction of both their clients. Blockchain technology can be used to make a computer program called “smart contracts”, which makes the process easier. These contracts are very useful in terms of copyright, for example: for sale of a sound recording. They jump-start the process of framing legal and binding contracts, executing these obligations seamlessly through software codes. For example: A wants to quickly acquire rights to a logo of a green lion made by or belonging to B. When A makes the payment, the rights in the work will be immediately transferred to B. The grant of rights here is a legal consequence triggered by the code after the condition is met, signified by the successful money transfer. Blockchain technology verifies all the elements involved and keeps a record of this transaction, so it can be looked at by someone in the future for information. At the same time, this data is stored in a transferable and nearly non-hackable ledger to make sure no one tampers with it. Standard procedures can include agreements with a binary option, like a true/false or if/then paradigm. Complex drafts could include compiling conditions of the parties, comparing their interests and defining terms like “prudent” and “rational” with the help of an actual person to adjudicate and resolve the dispute. The biggest advantage of smart contracts is that it self-execute without the need for a third party monitoring it.

Reducing counterfeits

The world of fast fashion has resulted in a lot of knock-offs of luxury brands being sold in the market. This dilutes the value of the trademark, which has been registered and created by the hard work and toil of the owner. Imagine a situation where a design attorney has to comb through 16 hours-worth of documents to find out who is the first owner of a particular cloth pattern, in order to defend a client. Blockchain technology gives users (like the attorney) some comfort by telling them who is the owner or whether a particular product belongs to the authentic brand or not because high-end clientele don’t want to spend a lot of money on something which has no brand value. A Givenchy bag would receive a unique QR code, which can be used by a customer to access its digital certificate online. The certificate would possess the signature of the brand company’s directors and any others involved in the supply cycle, guaranteeing to the user that the product they bought is original and not a replica. This information can be easily accessed by the public as it is added to a blockchain, thus others can track the current owner in real-time. This does not mean the brand directly sells to its customers. Its products can be displayed in various retail outlets across malls and shopping centres. These retailers can make sure the goods given to them are not fake so that they can make payment promptly to the wholesaler using Blockchain. These hashed digital certificates also help when the creator of a song tracks unauthorised usage. Large music labels all over the world also have this software in place, which tells them when and who has used their songs without permission, violating their copyright protection, and giving them probable cause to sue.

Management markets

If a patent application was stored in a shared patent record database instead of the necessary patent office, the platform would be openly accessible to the public and reduce the burden on the office. There is also no scope for red-tape and other political influence here, as technology is tracking users and not humans, which ensures that only patents which satisfy quality checks are registered. Then, the human element required is only for the responsibility of the office. Once the first-stage prototype is accepted, the code attached to Blockchain can trigger more funds for the inventor. Electronic ledgers keep the records of such transactions or inventions or digital artistic expressions, then Blockchain records, shares and integrates them using several nodes or computers. Since this technology is not concentrated on one particular person, it will not be limited to any jurisdiction, allowing for a global patent system. Let’s say Xena has an idea in mind and wants to file for a patent after making it, but she is not sure whether something similar to her invention already exists anywhere in the world. To avoid legal liability in the future, she can quickly find information in the universal database, which makes the innovation process smoother. If she finds another similar invention registered in Pakistan, she will not have to waste time and money in creating the product and going through the registration process.

Version control

With the advancement of technology, it is easier for people to edit, rework upon or have multiple versions of a product during its lifetime or life-cycle, like the option to track the history of edits on a Google doc. Each non-duplicate version will be given a unique fingerprint on the indexed platform and the computer server can choose which content it hosts and link all these versions together. If two parties want to license each of their copyright to each other, they can use a kind of smart contract called “smart research and development agreements” in order to collaborate and create a new work. There is no confusion as to who is the owner of what after this transaction because of the Blockchain solution. This gives incentive for creators to better themselves, leading to innovation in society.

Evidence in trademark applications

Just because someone files for registration of a trademark, it doesn’t mean it will be granted; not until they can convince the requisite trademark office that they have proof of use along with how much and when they have used it and established distinctiveness. Let’s say Anand successfully registered his trademark on 4^th January, 2013, but comes to know about a trademark deceptively similar to his in a Trademark Journal from 2021. When Anand files an objection to the other user’s application, he can easily pull up the data which proves that when and how much he has used it along with the date and time stamp using data stored on the digital ledger via Blockchain technology, thus increasing reliability and reducing confusion.

Conclusion

Blockchain technology thus helps users protect their digital data securely while making legal transactions and managing intellectual property rights. Individual users might be worried about how their data is being used. We looked at how it is easy for lawyers or the IP offices to track a particular owner, but there is in-built consent every time someone looks at that owner’s details or data. Blockchain technology also provides an opt-out scheme, for users not comfortable with their data or copies of their data being stored. Blockchain is not free from criticism, with its high environmental cost and high monetary cost because of its storage requirements. There is scope for Blockchain networks to come under the ambit of Section 65B of the Indian Evidence Act, 1872, which deals with electronic records being submitted as evidence. Even the Indian Government and PM Modi has encouraged the use of Blockchain in e-governance and other workplaces. While the internet allows users to access all kinds of content, it often compromises the privacy and recognition of the original creator. Blockchain ensures the protection of the rightful person’s digital intellectual assets (this even includes research publications!) while providing proof of ownership by using features like timestamping to validate and secure precious data. When it comes to the future of this technology, it will most likely be explicitly accepted as a form of evidence in most courts and used by most governments by respective domestic legislations, which will in turn harmonize the entire IP cycle.

References

Amy Whitaker, Art and Blockchain: A Primer, History and Taxonomy of Blockchain Use Cases in the Arts, Artivate, Vol. 8, No. 2 (2019).
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Anjali Baskar, Analysing the Use of NFTs for Protection of Digital Artistic Works, Intellectualis, Vol. 4 (2021).
Annabel Tresise, Lake Goldenfein & Dan Hunter, What Blockchain Can and Can’t Do for Copyright, 28 AUSTRL. INTELL. PROP.J. 144, 143-49 (2018).
B.P. Singh & Anand Kumar Tripathi, Blockchain Technology and Intellectual Property Rights, Journal of Intellectual Property Rights, Vol. 24, 41-44 (2019).
Birgit Clark, Blockchain and IP Law: A Match made in Crypto Heaven?, WIPO Magazine (Nov. 12, 2021, 4:15 PM), https://www.wipo.int/wipo_magazine/en/2018/01/article_0005.html
Blockchain and its application in the field of IP, Clifford Chance (Nov. 13, 2021, 2:35 PM), https://talkingtech.cliffordchance.com/en/emerging-technologies/blockchain—distributed-ledger-technology/blockchain-and-its-application-in-the-field-of-ip.html
Draft of National Strategy on Blockchain, Ministry of Electronics & Information Technology, Government of India (Nov. 12, 2021, 3:00 PM), https://www.meity.gov.in/writereaddata/files/NationalStrategyBCT_%20Jan2021_final.pdf
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Indian Prime Minister Narendra Modi (@PMOIndia), Twitter (Nov. 12, 2021, 3:30 PM), https://twitter.com/pmoindia/status/965463114367033344
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Mr. Sumit Prasad, The Future of Blockchain in Intellectual Property, Automation.com (Nov. 13, 2021, 2:03 PM), https://www.automation.com/en-us/articles/january-2021/the-future-of-blockchain-in-intellectual-property
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Seda Fabian, Blockchain and Intellectual Property Rights, 25 INTELL. PROP. & TECH. L. J. 147 (2021).
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