Analysis of Randheer Singh vs. State of Uttar Pradesh

November 18, 2021

This article has been written by Dharmender Pandey pursuing the Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).

Table of Contents

Introduction

This case was the outcome of a property dispute which was purely civil but it was given the colour of criminal case by the defendants to create pressure on the appellants in the civil court cases. This appeal was filed by Randheer Singh in Supreme Court against the Judgement and order impugned dated 15 December 2020 of the High Court of Uttar Pradesh Judicature at Allahabad under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr. P.C’). In this case, the appellant had approached the High Court of Uttar Pradesh by moving an application under Section 482 of Cr. P.C for quashing of proceeding in the Criminal case no. 5973/2020 (State vs. Rajan Kumar) under Section 420, 467, 468, and 471 of Indian Penal Code, 1860 (hereinafter referred to as ‘I.P.C’) which is dismissed by the High Court.

Issue involved in the case

The main issue of this case before the High Court was that Respondent Smt. Beena Srivastava brought in Ratnesh Mishra, Smt. Afroz Athar and Abdul Gani into the picture to harass the appellants by filing a criminal complaint against the appellant and others under Section 420, 467, 468, and 471 of I.P.C falsely pending before the Court of Additional Chief Judicial Magistrate, IIIrd, District Gorakhpur. When the appellant approached the High Court of Uttar Pradesh Judicature at Allahabad under Section 482 of Code of Criminal Procedure, 1973 for quashing of proceedings in criminal case no. 5973/2020 (State vs. Rajan Kumar) and also quash the charge sheet dated 18.01. 2020 and summoning order 26.06.2020 but the High Court has dismissed the said application by Judgement and order impugned dated 15 December 2020.

Facts of the case

In the present case ‘Plot No 971M 918 Aire (hereinafter referred to as disputed property) belongs to Arjun Dev and Bela Rani wife of ArjunDev and they are recorded as Bhumidhar of it. They had executed a power of attorney in favour of one of the appellants Rajan Kumar, who has since died. Rajan Kumar (deceased) based on said power of attorney executed a sale deed in favour of an appellant named Randheer Singh and his family, under which their name has been mutated in the Revenue records. The facts mentioned in the judgment and order under appeal that Smt. Beena Srivastava filed objections before the Naib Tehsildar but the same was rejected and the mutation has been completed in favour of Appellant and his family.

Smt. Beena Srivastava had filed a suit for cancellation of the power of attorney and registered sale deed executed by Rajan Kumar but the same was dismissed under Order VII Rule 11 of Code of Civil Procedure,1908 ( hereinafter referred to as ‘C.P.C.’) by order dated 18 September 2015. She had approached the Supreme Court in this case but could not get any relief from the trial court up to the Supreme Court.

The opposite party No 2 has lodged an F.I.R. based on false and baseless allegations against the applicants despite pending civil suits from both sides alleging each other for indulging in forgery and cheating. It is pertinent to mention here that these suits are still pending before the Civil Court for adjudication. It is brought to notice by the appellant that the impugned F.I.R. was filed under the direction of Circle Officer, Charu Nigam. In this case, it has been noticed that the investigation by the police has not been done properly. It was very surprising that police had made 12-13 witnesses but they had not named Bela Rani as a witness and not made any inquiry besides the fact that she does not have the power to execute the power of attorney or her signature was forged for the power of attorney. The charge sheet had not indicated a single thing about the offenses alleged in the F.I.R. The charge sheet submitted by the police was without proper investigation and evidence, and no prima facie case is mentioned in the charge sheet against the appellants. The charges in the present F.I.R. and contents of the charge sheet dated 18.01.2020 when reading together it shows that the investigation is not done properly and clearly shows the present case is an abuse of the law by the complainant. By looking at the facts of the case and the investigation together it is easily recognizable that this case is alleged frivolously to create pressure on the opposite party in the civil suit.

Contentions of Appellants

As per the Appellant, the present case is related to the disputed property. This couple had executed a registered Power of Attorney in favour of Applicant no. 1 Rajan Kumar who has since deceased. On the said Power of Attorney Rajan Kumar (since deceased) executed a sale deed in favour of Appellant and his family which is later mutated in their name. Smt. Beena Srivastava had filed suit for cancellation of Power of Attorney and sale deed to Appellant and his family by Rajan Kumar (since deceased) based on that Power of Attorney but the same was dismissed by order dated 18.09.2015. This order was challenged in First Appeal which was partly allowed by the High Court by an order dated 26.11.2015 with a direction to the Trial Court for returning the plaint to the plaintiff for presenting before the appropriate Court. Being aggrieved by this order she had approached the Apex Court by Special Leave Petition (Civil) which had been also dismissed by an order dated 08.09.2016. Failing to get relief from all the Courts, she brought in Ratnesh Mishra, Smt. Afroz Athar and Abdul Gani are in the picture with the sole purpose of harassing the Appellant. The FIR is false and frivolous, the investigation is shabby in nature and it did not show any concrete evidence, the investigation agency had not made Bela Rani even as a witness in the case. The FIR and Police report when read together clearly shows that this criminal case is only created for creating pressure on the Appellant in the civil case pending adjudication. The Learned Counsel of the Appellant had relied upon the judgments of this Court and cited Mohd. Ibrahim & Others and State of Bihar[ (2009) 8 SCC 751]; Kapil Agarwal & Ors v. Sanjay Sharma & Ors. (2021) 5 SSC 524;

Contentions of Respondents

As per respondents, in this case, Rajan Kumar, who is deceased now with the help of a false Power of Attorney executed by Bela Rani, had made a sale deed in favour of Appellant and his family. It was also submitted that Bela Rani has no right to sell the disputed property. It was also alleged that based on this false sale deed the Appellant in partner with Rajan Kumar ( since deceased) with the help of the witnesses in the sale deed who are “criminal type persons” had trespassed the house by breaking the lock before opening the door and write their name in absence of the complainant.

Case analysis

By analyzing the facts given by the parties, their arguments, circumstances of the case along with cases cited by the Counsels for both the parties. The Court opined that there is no offense as per the F.I.R. has been made out by material on record. It is the duty of the Court that criminal proceedings should be discouraged if they found it with mala fide intention or abuse of the process of law.

It is a well-settled position of law that whenever the question of quashing the prosecution arises in the initial stage the Court should apply the test that whether the allegation made prima facie establishes the offense or not. The court should also take into consideration any of the special facts of the case whether it is in the interest of the justice to quash the proceedings even if it may be in the preliminary stage. The court must ensure all the time that the criminal proceedings are not to be used for harassing or seeking personal revenge or with an ulterior motive of pressurizing the accused. In this case, in light of the above settled legal position of the law, the judgment and order impugned were not sustained.

The Court has observed in this case that the complainant has used the criminal proceedings as a weapon of harassment against the purchaser. The Court also found on the part of the complainant that the complainant has abused the law by implicating the appellants after the twelve-year of registration of the sale deed in dispute. It is also important to mention here that the High Court of Uttar Pradesh Judicature at Allahabad had appreciated the facts of the Appellants but failed to interpret and execute the power given under Section 482 of the Cr. P.C, which empowers the Court for dispensing Justice and checking the abuse of the law, and securing the ends of justice. The High Court has to see whether the essential ingredient of the criminal offense is present or not. The High Court has to see whether the civil dispute has been given the color of criminal offense and if found so should not hesitate to quash the F.I.R. and criminal proceedings as this court has done in the ParamjeetBatra (Supra). The Supreme Court had very specifically mentioned that it is true that the power given under Section 482 of Cr. P.C should be used very rarely but also mentioned that wherever abuse of the law is involved, the Court must use the power given under Section 482 of the Cr.P.C. The Supreme Court has allowed the appeal and set aside the Judgement and order impugned and quashed the criminal proceedings in criminal case no: 5973/2020 against the appellant.

Conclusion

The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment can not be sustained.

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Available remedies in trade secret and restrictive covenant cases under US laws

Oishika Banerji

November 18, 2021

This article has been written by Eriobu-Aniede Onyekachi pursuing the Diploma in US Intellectual Property Law and Paralegal Studies from LawSikho. This article has been edited by Aatima Bhatia (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).

Table of Contents

Introduction

Secrets are personal and confidential information that a person guards from becoming public because it could be detrimental to their reputation especially if the information is negative. In a business setting, trade secrets are confidential information that gives a business a competitive edge in the market. Sometimes, trade secrets are shared with employers, customers, partners and investors for the objectives of the business to be accomplished. Trade secrets are vital to the survival of any business, especially those who strive basically on their ability to keep their trade secret; the formula for Coca-Cola drinks and its long existence in the market is a top-secret only known to a few.

Trade secrets are ideally guarded through physical security measures that are proven imperfect and so exposed or shared with third parties who may misappropriate them during or after the working relationship. Since employees will naturally keep relationships and work separated , it is natural to request that the confidential information which they come across in the line of duty be kept secret. Employers use restrictive covenants to achieve this purpose.

Restrictive covenants are found in different forms of agreement ranging from employment, property to business agreements. In an attempt to maintain business confidentiality through restrictive covenants, obstacles are met at the point of enforcement depending on the jurisdiction and scope of the restriction. While some jurisdictions favour restrictive covenants for meeting their objectives, the US frowns at them especially in employment contracts for limiting the employee’s choices and operations.

For easy comprehension, this article is limited to trade secrets as a genre of intellectual property (IP) and its relationship if any with restrictive covenants in an employment contract and their available remedies in the US Law?

What is a trade secret?

The World Intellectual Property Organisation (WIPO) defines a trade secret as any information that;

Is not generally known to the relevant business circles or the public;
Confers some sort of economic benefit on its owner. This benefit must derive specifically from the fact that it is not generally known, and not just from the value of the information itself; and
The subject of reasonable efforts to maintain secrecy.

Generally, trade secrets are protected only against improper acquisition as such, no liability if the information is exposed through independent improvement, reverse engineering, leakage or otherwise. The personal information of a business such as its customers’ lists is confidential information that is protected under privacy law. Trade secrets, unlike a patent, last in perpetuity if well kept but are not monopolistic such that, if two businesses independently develop information that is eligible for trade secret protection, both will enjoy the trade secret rights in the same information pending when either or both publish the information. It is pertinent to note, however, that:

The protection of trade secrets is generally weak in most countries;
Its eligibility and scope of protection varies from country to country depending on statutory mechanisms and judicial precedents;
The judiciary mostly requires proof of significant and perhaps costly efforts to preserve its secrecy.

In light of the above stated peculiarities, it is advisable to use trade secrets if the information can be kept secret for over 20 years as with a patent validity period; if the information is not likely to be legitimately and independently developed; if the secret cannot easily be revealed through reverse engineering; if it has little commercial value whether as a product or as a manufacturing process; and if obtaining patent rights is considered too expensive.

Qualification for trade secret

Going by literature reviews and judicial precedents, three key things must be established for a secret qualifying as a trade secret;

Secrecy: the subject matter for the trade secret must be sufficiently secret in that it is not known and is not easily discoverable.
Commercial Value: the information is such that provides or will provide the owner with a competitive advantage over competitors simply because it is not capable of being known to others.
Reasonable Measures: some security effort must have been initiated towards the safeguard of the secret.

Take, for instance, Coca-Cola kept its soft drinks formula a secret instead of patenting it. If it were patented, it would have long been in the public domain and Coca-Cola would no longer have a competitive advantage over it. It is said that Coca-Cola takes security measures in guarding the secret formula by; keeping the formula in the vault of a bank in Atlanta, Georgia; ensuring the formula is only known to a few people within the company who were made to sign a non-disclosure agreement and who are not allowed to travel together. A non-disclosure agreement is a form of a restrictive covenant that can stand alone or be incorporated into an employment agreement to protect secrets.

What are restrictive covenants?

Restrictive covenants are agreements not to do something(s). They often stand alone or are embedded in contracts as nuances; to limit the use and sharing of trade secrets by the receiving party. They are especially found in employment letters, work for hire contracts, partnerships and investment contracts between persons or and organisations. For instance, a former employee is restricted from; setting up competition within a certain radius or a period of leaving and or poaching other employees for a competing business. Its objective is to protect information that is considered fundamental and priceless to the success of a business. So restricting the use of such information by employees during and after their employment has ended is key to the business survival thereafter. It can be imagined that an ex-employee who has knowledge and workings of their former employer’s technology and other strategic information could after they leave the employment, decide to start a similar business within proximity as that of the former employer or become an attractive asset to a competitor. Restricting such an employee will prohibit him or her from competing directly or indirectly even for a reasonable period after the lapse of the business relationship. Setting out such clauses at the beginning of an employment relationship can be the best means through which trade secrets are protected.

Restrictive covenants in an employment contract may take any or all of the following forms;

Non-competition covenants: a non compete clause, is an agreement that prevents an employee from competing with the former employee within a specified area for a certain period. This covenant when found in an employment contract limits the employee’s ability to use the resources from the current employer to benefit a future employer such as using trade secrets or business methods that are unique to the former employer.
Non-solicitation covenants: is used to prevent an employee from soliciting or accepting business from the customers of the former employer and it prevents poaching of clients/customers/suppliers of the former employer. It is restricted to customers with whom the employee has some interactions.
Poaching covenants: this covenant is usually found in a work for hire agreement and it is a promise not to hire any employees of the former employer. This is limited to the non-hire of employees, with whom the former employee supervised, or worked.

Enforceability of restrictive covenants

It is pertinent to understand what avenues are open to an employer whose trade secret has been breached despite having the restrictive covenant signed. An application for an injunction requesting that the employee “hand over” or destroy confidential information is made to the court to stop the employee in his tracks. Depending on the jurisdiction, the employer may pursue injunctive relief and damages against the employee or business partner and can also sometimes directly pursue damages from a former employee’s new employer for interference with the departed employee’s restrictive covenants. An employer that claims damages for breach of a restrictive covenant in an employment contract, must show some loss resulting therefrom, such as the loss of profits on contract opportunities diverted by the act of the employee.

The enforceability test for a restrictive covenant is, whether the restrictive covenant is reasonable in scope, geography and time. For instance, states like California, Montana and North Dakota prohibit employers from asking their employees to sign restrictive covenants. California law bars the non-solicitation of customers and non-compete covenants that restrain anyone from engaging in a lawful profession, trade, or business of any kind. In Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937, the California Supreme Court held that the law should be read strictly, and not only void the “unreasonable” non compete clause, but all non compete clauses, except those allowed as exceptions in the code.

While the courts consider the reasonability test, judicial precedents have further classified grounds for enforcement;

Geographically: the restriction must be limited to where the Company is physically situated, however this is challenged by globalization. Also, the geographic scope is not necessary for a non-solicitation agreement. The Wisconsin court of appeal in Selmer Co. v. Rinn, 328 Wis.2d 263, 281 (Ct . App. 2010) stated that restrictive covenants are analyzed by examining the totality of the circumstances, such that the court found in Karpinski v. Ingrasci, that the scope of the agreement was too broad because the former employee was restricted from even working in the similar line of business (practice dentistry) as his employer’s practice area, but was able to perform oral surgery as a dentist even though the non-compete agreement was reasonable in duration and geography.
Legitimate purposes: this established the purpose for the restriction. Was it to preserve the goodwill, protect customer relationships and confidential information and trade secrets of the business? In FTI Consulting, Inc. v. PricewaterhouseCoopers LLP, 8 A.D.3d 145, 146 (N.Y. App. 1st Dept 2004) the court held that finding breach of restrictive covenants constitutes irreparable harm where the loss of goodwill is not readily quantifiable.
The Inevitable Disclosure Doctrine: court considers the inevitable disclosure doctrine where a former employee’s new employment threatens disclosure of his or her former employer’s trade secrets, though the employee has not misappropriated the information. This particularly depends on the employee’s prior role. In Alliance Intl., Inc. v. Ferreira, 530 F. Supp. 2d 477, 482 (S.D.N.Y. 2007), the court enjoined a former executive from working for “a direct competitor” where the executive “possesses detailed knowledge” of “non-public information” regarding former employer’s “customers and marketing strategies that would undeniably be of value to one of its direct competitors.”

The court explained that “even if [the former executive] acted with the best of intentions, he may unintentionally transmit information gained through his association with his former employer during his day to day contact with his new employer” and that the former executive’s employment with the new employer creates the risk that disclosure of the former employer’s trade secrets is inevitable.” Id. (internal quotations omitted). In I.B.M. Corp. v. Papermaster, 2008 U.S. Dist. LEXIS 95516, at *25 (S.D.N.Y. Nov. 21, 2008), the court enforced a covenant not to compete where a former employee had access to “sensitive and confidential information through his work” concerning the former employer’s “strategic plans, product development, technical recruitment, and long-term business opportunities.” The court found that the “likely inevitability of even inadvertent disclosure is sufficient to establish a real risk of irreparable harm to IBM.” 2008 U.S. Dist. LEXIS

Proof of Irreparable Harm: some jurisdictions like New York require proof of irreparable harm should an injunctive relief not be granted against an ex-employee who misappropriated trade secrets leading to loss of client relationships or goodwill. Proof of irreparable harm if injunctive relief is not granted may move the court to enforce a restrictive covenant. The court in Chertoff Diamond & Co. v. Fitzmaurice, 234 A.D.2d 200, 203 (N.Y. App. 1st Dep’t 1996) held that “it clearly shows that plaintiff would suffer irreparable harm should its clients terminate their relationships with it to use defendants’ services and in Alside Div. of Associated Materials Inc. v. Leclair, 295 A.D.2d 873, 874 (N.Y. App. 3d Dept 2002) the court held that if defendants are permitted to compete unfairly by using plaintiff’s confidential and proprietary pricing information to underbid it, plaintiff will not only lose business but will also suffer a dilution of the goodwill it has developed with its customers. Such a loss of customer goodwill can constitute irreparable harm for preliminary injunction purposes.
Permissible durations: what is the reasonable allowed period for such restriction perhaps; 3-5 years sale of a business or work for hire if it involved the disclosure of trade secrets and o-1 year in an employment relationship.

The US trade secret law

Before now, the US Trade secret laws had been handled by the individual states in the United States until 1979 when a Uniform Trade Secrets Act (UTSA) was proposed to the states and it was widely adopted except with varying provisions that made national implementation fairly complex. In 1996, the federal government enacted the law limiting its scope to criminal remedies. By 2016 the US Congress had enacted the Defend Trade Secrets Act (DTSA), and a harmonized rule. This Act allows trade secret holders the option to bring civil claims on trade secret matters before the federal court.

In the US, trade secrets are classified under IP law and one year preceding the enactment of the (DTSA), the number of trade secret actions increased to 1,134 from an average of about 900 per annum between 2009-2016.² Here are some of the ways the enactment of the DTSA impacted trade secret litigation in the US.

Benefits of the DTSA

Access To Federal Court: The DTSA brought an increase in the number of trade secret cases filed in the federal court but with a prerequisite. It requires that the alleged trade secrets should be “related to a product or service that is used in or is intended for use in interstate or foreign commerce. This requirement though easily complied with, the courts have had to dismiss DTSA claims where the complainant failed to aver a nexus between the alleged trade secrets and interstate or foreign commerce.
Covers Continuity in Misappropriation: While the DTSA like any other law is not retrospective in nature and , therefore, does not apply to acts of misappropriation that occurred before its enactment in May 2016. It however, does apply to misappropriations that began before the DTSA’s enactment but that continued to occur (through wrongful use or disclosure) after the enactment date. Thus, the DTSA covers cases of “continuing misappropriation in contrast with the UTSA, which does not entail such provisions.”
Pleading a DTSA Claim: Pleading a claim under the DTSA and UTSA are similar except with two variations; a claim under the DTSA should allege a nexus between the alleged trade secrets and interstate or foreign trade and; pleading damages in a claim under the DTSA is not necessary.

Remedies available under the DTSA

There is both equitable and monetary relief under the DTSA like the UTSA, it provides for an injunction to avert actual or threatened misappropriation of trade secrets. As it stands, there is little judicial precedent to analyze damages under the DTSA. However in Steves and Sons, Inc. v. JELD–WEN we see an extended and thoughtful discussion of damages under the DTSA and UTSA. Some damages that the court may award:

Actual losses: the plaintiff’s lost profits from the misappropriation.
Unjust enrichment: a plaintiff may also recover the amount of unjust enrichment received by the defendant, but only to the extent it is not duplicative of its actual losses.
Reasonable royalty: as an alternative to damages based on actual losses or unjust enrichment, the plaintiff may be awarded a reasonable royalty for the unauthorized disclosure or use of the trade secret. This is not the preferred remedy based on legislative intent. A better approach would be to immediately halt the misappropriator’s use and dissemination of the misappropriated trade secret and, make available appropriate damages⁷
Courts may double damages and award attorneys’ fees in the event of willful and malicious appropriation of trade secrets.
Employers can also sometimes pursue damages from a former employee’s new employer for interference with the departing employee’s restrictive covenants.

Protecting trade secrets from unlawful disclosure- lessons from Coca-Cola

Employer-Employee Relationship: it is needless to say that employees are the biggest source of trade secret loss, therefore;

The employer should endeavour to share trade secrets or confidential information minimally and only with staff who necessarily need to know.
The employees’ welfare and bonus packages should be taken seriously, as it increases trust and gives the employee a sense of ownership in the business.
All other ideas and inventions that are not necessarily protectable by trade secrets should be protected through other intellectual property regimes.
Every employee should be made to sign restrictive agreements such as a non-disclosure agreement, a non-compete and a non-solicit agreement at the point of entry. This remains valuable even after the employment relationships terminate.
The employee’s contract should contain terms and penalties for breach, misuse or disclosures of confidential information outside the scope of their employment and;
Employees should be constantly trained and reminded of the importance and benefits of trade secrets to the business and their welfare.

2. Business Partners/Customers:

Businesses should include restrictive covenants or agreements such as non-disclosure agreements, non compete and non-solicit agreements in their dealings internally and externally.
Businesses should ensure that all transactions and dealings with customers and partners are recorded and safeguarded through; physical security as well as well-drafted and executed contracts.
The sharing ratio of rights over IPs that are developed from such business relationships should be spelt out, agreed upon, documented and protected accordingly.
Businesses should engage the services of IP professionals/lawyers for proper guidance in contract drafting, the perusal of legal documents, negotiation of contracts, protection mechanisms, and for a hitch-free enforcement process etc.

Conclusion

While it is needful to include restrictive nuances for the protection of trade secrets, the attitude of the US courts presupposes that an employer who wants to benefit from the restriction imposed on an employee must be willing to show consideration for the same. Whereby proving; the continued employment of an employee at will, offering an employee a bonus or a severance package or by tying the receipt of a current employee’s annual bonus or increment to the covenant. It is therefore suggested that while drafting an employment contract, it is not sufficient to embed restrictive covenants, it is more important to tie restrictive covenants in equity option, grant, or an award of deferred compensation which would be forfeited or the amount if already paid is clawed once a breach is traced to the beneficiary-employee. This administrative approach provides employers with an option for a less expensive but cognitive measure for the enforcement of trade secrets because court injunctions can be unpredictable and expensive.

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The case of Dhananjoy Chatterjee : a noteworthy lesson for the judiciary

Sneha Mahawar

November 18, 2021

This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail what happened in the case of Dhananjoy Chatterjee, the questions that remain unanswered to date and what could be done in future to avoid the mistakes committed therein.

Introduction

Dhananjoy Chatterjee was a security guard who was convicted for the rape and murder of an 18-year-old schoolgirl. The case was termed as a ‘rarest of rare’ case and capital punishment was issued against Dhananjoy Chatterjee. He was hanged 14 years after his conviction and his last words were “I am innocent”.

Why did a simple security guard commit such a heinous crime? Why has this case sparked a controversy? Why did Dhananjoy Chatterjee plead innocence till his very last breath? Was he really innocent? Did the judicial system in India fail him? All these questions have been analysed in-depth and answered in this article. Read along to get an in-depth perspective of this controversial case.

Facts of the case

The appellant herein was an employee of the Security and Investigating Bureau and was posted as a security guard of Anand Apartments. The victim, Hatel, an 18-year-old schoolgirl complained to her mother on several occasions that the appellant used to tease her on her way to school and also had asked her out to accompany him to a movie.
These actions were reported to the employer through a written complaint. In furtherance of the same, the appellant was transferred to another building by the employer. This transfer was scheduled to take place on 5^th March 1990. However, on that day, the appellant did not report to the new apartment but continued at his post at Anand Apartments from 06:00 AM to 02:00 PM.
On 5^th March 1990, the victim’s father left the house for his office and her brother left the house for college and the victim for her school. She returned home in the afternoon at around 01:00 PM. Her mother left for a nearby temple in the evening around 5:30 PM leaving the victim alone at home.
After the victim’s mother left for the temple, the appellant reached the victim’s apartment and told the security guard posted there that he wanted to go to the victim’s flat for contacting the employer and the guard allowed him to go to the victim’s flat.
The employer visited Anand Apartments at around 05:45 PM to enquire if the new guard had taken up his post in the morning. However, he was informed otherwise by the residents. On enquiry, he came to know that the appellant had gone to the victim’s flat. He asked the security guard at the victim’s apartment to call him out and when his name was called out aloud, he appeared on the balcony of the victim’s flat and answered that he was coming down.
The appellant came down in a while and insisted on talking to the employer outside the gate. He then stated that he had some personal difficulties due to which he could not obey the transfer. The employer ordered him to obey the transfer the next day.
When the victim’s mother returned, she was informed that the appellant had entered her flat. She repeatedly rang the bell but there was no answer. She raised the alarm and soon the door was broken.
The victim was found in her bedroom in a bloodied state. Her dress was torn and there were marks of violence on her body and private parts. Soon a doctor was summoned and she was declared dead.
The victim’s father reported the incident to the police 3 hours after the incident and investigation began thereafter. Several pieces of evidence were collected from the bedroom. The post-mortem report of the deceased recorded the reason for death as smothering with strangulation.
The search for the appellant began soon after and he was arrested after 7 days, i.e., on 12^th March 1990. The clothes that he had worn at the time of the commission of offence were recovered from him. Also, a wristwatch stolen from the victim’s apartment was recovered from his possession.
At the trial, he claimed innocence and alleged false implications. He stated that he had left for his village on 5^th March to attend a ceremony for his younger brother. There was no eye-witness of the rape and murder.

Observations of the Trial Court and the High Court

Both the Trial Court and the High Court went on to hold that the circumstantial evidence and the pieces of evidence recovered from the place of the appellant and the victims house conclusively establish the guilt of the appellant. The Trial Court sentenced the appellant to capital punishment. This sentence was confirmed by the High Court.

Observations of the Supreme Court

Motive

In cases that are based on circumstantial evidence, motive should be established beyond any doubt.
The appellant used to tease the victim time and again and she had complained the same to her mother. A written complaint was made by the victim’s father to the employer as well informing him of the same due to which the employer ordered the transfer of the appellant.
These facts clearly establish a motive on part of the accused to commit a crime of such nature against the victim.

Alibi

The appellant stated that he was at his village for a ceremony and therefore has an alibi. This argument was rejected because the alibi in question was a post-alibi, i.e., an alibi for a time after the occurrence of the incident.
At the time of the incident, multiple witnesses had confirmed that the appellant was present at the victim’s apartment and the security guard of the victim’s apartment, the employer and the lift operator of the victim’s apartment were eyewitnesses to the same.
Thus, it was concluded that the appellant was present at the victim’s apartment at the time of the commission of the offence.

Evidence recovered from the appellant and the victim’s house

A yellow button was recovered from the victim’s apartment. Eye-witnesses had stated that the appellant was wearing a yellow shirt on the date of the incident. The same outfit was recovered from the appellant when he was arrested. An expert was appointed by the Court to examine the same and it was confirmed by the expert that the button was part of the shirt of the appellant.
The wristwatch that was stolen from the house of the victim was found in his possession at the time of the arrest.

Conclusiveness of the circumstantial evidence

The circumstances in question clearly establish the guilt of the appellant. The chain of evidence suggests only one possible outcome, i.e., the appellant is guilty of the offence of rape and murder of the victim.

Death penalty

The punishment for any offence should depend on three factors:

The degree of atrocity involved in the commission of the crime
The conduct of the offender
The defenceless and unprotected state of the victim

The duty of a security guard is to protect the residents of the building, but instead, the appellant herein chose to gratify his lust and murder the victim. The nature of injuries suffered by the victim and the defenceless state of the victim shows the degree of atrocity involved in the crime.
The appellant had pre-planned the entire crime and murdered the defenceless victim in cold blood. Thus, the case falls under the scope of ‘rarest of rare’ case and thus capital punishment is an appropriate punishment.

The hanging of the Appellant

After serving 14 years in prison, the appellant was hanged in 2004. According to Mr. Nata Mullick, the person who hanged the appellant, the last words uttered by him were “Ami Nirdosh. Amake mere phelchhe sab”, i.e., I am innocent. They are all killing me.

Anomalies in the case

The People’s Union for Democratic Rights published a Report in 2015, wherein Dhananjoy’s side of the story was brought to light and the anomalies in the investigation and the judgement were discussed. The relevant portions of the Report are discussed below:

Bloodstains

The post-mortem report had recorded evidence of strong resistance by the victim. Injuries and blood on the hand of the victim suggested that she had attacked her attacker. However, when Dhananjoy had come out of the victim’s apartment to meet the employer, none of the witnesses saw any signs of struggle on his body. There were neither scratches or bloodstains on his face or body nor was his appearance dishevelled.

Also, there were no bloodstains that were visible on his outfit even though the victim’s body was covered in blood. The forensic expert who had examined the shirt had reported that there were no traces of blood on his shirt or pants.

Fingerprints

The fingerprints of the Dhananjoy were neither recovered from any part of the victim’s apartment nor from the body or outfit of the victim.

Witness testimonies

The liftman denied in Court that he had taken Dhananjoy to the third floor where the victim’s apartment was located. The security guard of the building also did not see him enter the building. Although he was seen later in the balcony of the victim’s flat, there was no witness to corroborate as to when he entered the flat and for what time duration he was in the flat.

Regarding Dhananjoy showing up on the balcony, the security guard had stated that he called Dhananjoy out to the balcony at 5:45 PM. However, the liftman had stated that he had seen Dhananjoy going down the stairs at the exact same time. However, initially, the liftman had concurred with the statement of the security guard. The liftman had later turned hostile. Thus, both these statements were in contradiction to each other but were still admitted by the Court. The Court also failed to examine the reason behind the liftman turning hostile. Another point for consideration was that the balcony area did not overlook the security post of the guard.

Non-examination of a crucial witness

The entire proceedings were focused on Dhananjoy and the fact that he did not comply with the transfer order. However, Mr. Bijoy, who was supposed to replace Dhananjoy as the security guard at Anand Apartments never showed up. The reason for his non-compliance with the transfer order and his alibi at the time of the commission of the offence was not taken into consideration by any Court.

The mother of the victim

According to the testimonies of the security guard and the victim’s mother, she had left the apartment at 05:20 PM. However, the liftman gave a contradictory statement that he had escorted her at around 04:10 PM. This contradiction was also ignored by the Courts.

Time of the commission of the offence

According to the witness testimonies, Dhananjoy entered the building around 5:25 PM and left around 5:45 PM. At this time, he also appeared on the balcony and spoke to the security guard. Thus, he only had less than 20 minutes to enter the apartment, overpower the victim and commit the offence, steal the said wristwatch, tidy himself and leave without a scratch.

The possibility of whether or not someone else was present at the scene of the crime was not examined. Also, the manner in which he appeared on the balcony and then outside did not indicate any form of struggle.

Validity of the motive

The prosecution had established the motive on two grounds, i.e., the constant teasing of the victim by Dhananjoy and the transfer order issued against him. However, if that was the case, why would someone who was driven by lust and revenge, stop and take time to steal the wristwatch from the almirah of the victim’s apartment. Also, the Court failed to note that the watch was not recovered on his body at the time of arrest but was recovered from his residence on the date of arrest. Also, if he had indeed committed the crime, why would he store the clothes in which he had committed the offence. Both these questions were not answered by any of the Courts.

Non-examination of forensic evidence

The forensic evidence stated that semen stains were found on the undergarments and pubic hair of the victim. However, no steps were taken to examine if the semen stains actually belonged to Dhananjoy. Also, the blood report of the crime scene noted that the blood found on the scene did not belong to Dhananjoy. No DNA tests were conducted to establish whether or not Dhananjoy had committed the rape.

The post-mortem report

The post-mortem report did state that there was sexual intercourse but there were no injuries in and around the private parts of the victim that proved forced sexual intercourse.

Other arguments that were not considered by the Court

The question as to how Dhananjoy entered the flat and how was the door closed from inside when he left the flat remained unanswered. Also, the question as to why would the victim allow a man who harassed her frequently into the house was not answered.

The company time and again issued transfer orders. However, the employer never went to check whether or not the guards complied with such orders. Why an exception was made in this case remained unanswered.

Dhananjoy had made a complaint to the supervisor regarding an affair that the security guard had with the maidservant of the building. This could have tipped in favour of the security guard making a statement against Dhananjoy. This conflict of interest was not considered.

The question as to why Dhananjoy was allowed to go to the apartment was not examined. The reason behind allowing Dhananjoy to go to the third floor to make a call was not looked into.

An alternative theory

The mother of the victim, as a routine, went to the temple every day around 5:30 PM. However, according to the statement of the liftman, she left around 4:10 PM that day. On coming back, and finding no response to the doorbell, she did not attempt to contact her daughter through telephone or intercom. She raised the alarm and when the door was broken, she dragged her daughter to the lift on her own to take her to a doctor, even though she was already dead. She failed to inform the police about the incident and it was her husband, who came back home after 3 hours who informed the police. After the trial began, she left the state and failed to show up for the trial several times. Soon after, her brother and father also left the place even though they had a settled business there.

The post-mortem report did not suggest rape but only indicated sexual intercourse and since there were no injuries on the private parts, this sexual intercourse could have been consensual. The crime scene was disturbed by the mother by dragging her daughter and then again placing her back on the bed and covering her with the bloodied bedsheet.

The Report suggests that there could be involvement of her mother in the crime for entering into a consensual sexual relationship with Dhananjoy. The entire story regarding complaints made by her daughter could never be corroborated as there was no evidence for the same. The written complaint that was submitted to the employer was never produced before the Court. Initial media reports suggested that only an oral complaint was made in this regard and no report as to the complaint being recorded was produced before the court.

What do we learn from this case

The Court had failed to establish the guilt of Dhananjoy beyond reasonable doubt and passed the judgement on circumstantial evidence. Several important pieces of evidence, including those of DNA evidence, were left unexamined by the Court. Before the crime was committed, the father of the victim had spoken ill about Dhananjoy on multiple occasions to the neighbours without giving any reasons. The Court failed to consider the possibility of another angle to the case.

What is to be noted is that if the Court had considered all the evidence properly, there could be a chance that Dhananjoy would have been declared innocent. The principle of the Indian judiciary that even if 100 criminals go free, one innocent person should not suffer should take precedence in such cases. The importance of collecting and examining evidence properly is one of the main learnings that can be taken from this case. Also, the delay in calling the police could have led to some of the evidence being tampered with.

Thus, to conclude, one may never know whether or not Dhananjoy committed the crime. But what one can say without any doubt is that proper procedure was not followed during his trial. It is very important that even in the most heinous crimes, the accused gets a chance to represent himself in a fair manner and the Courts apply their judicial minds to probe the crime to its finest details before coming to a conclusion.

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/J_0YrBa4IBSHdpuTfQO_sA

Landmark judgments pronounced by Justice RF Nariman

Sneha Mahawar

November 18, 2021

This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail the various landmark judgments given by J. RF Nariman during his tenure as a Justice in the Supreme Court.

Table of Contents

Introduction

Justice Rohinton Fali Nariman was part of several historic judgments over the years. He was the Solicitor General of India prior to his appointment as a Justice in the Supreme Court in 2014. He served as a Justice for over 7 years and retired on August 12, 2021. In his tenure, he dealt with over 13,565 cases.

This article discusses some of the landmark cases that he was part of and the observations made by him in those cases.

Landmark cases

The abolition of Section 66A of the Information Technology Act, 2000

In Shreya Singhal vs. Union of India (2015), Sections 66A, Section 69 and 79(3)(b) of the Information Technology Act, 2000 (IT Act), the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, Section 118(d) of Kerala Police Act and Sections 95 and 96 of the Code of Criminal Procedure, 1973 were challenged to be unconstitutional on the grounds of violation of Article 19(1)(a) of the Constitution of India. Apart from Section 66A, all other provisions were held to be constitutional by the Court.

Provisions of the IT Act

Punishment for sending offensive messages

Section 66A of the IT Act provided the punishments for sending offensive messages through a computer or any other communication device. The following acts were punishable under this provision:

Conveying any information which is grossly offensive
Conveying false information, knowing it to be false for the purpose of causing injury, annoyance, insult etc to the person.
Any email sent for the purpose of annoying the recipient or to deceive the recipient about the origin of such a message.

Liability of intermediary

Section 79(3)(b) of the IT Act states that if any information that is available of the platform of the intermediary is being used for the commission of unlawful acts, and the intermediary has knowledge about the same or is notified by the Central Government regarding the same, the intermediary is bound to remove or disable access to such information. If the intermediary fails to comply with this duty, the intermediary shall be liable under this provision.

Issues and judgement

Whether Section 66A protects individuals from defamatory statements that are made online?

One of the essential ingredients for defamation is an injury to reputation. However, Section 66A of the IT Act deals with statements or information that are grossly offensive in nature. It is not necessary that a statement that is grossly offensive will harm the reputation of any individual. Thus, the scope of Section 66A does not extend to defamatory statements that are made through a computer or any other communication device.

Whether Section 66A is constitutionally valid?

Article 19(1)(a) deals with the fundamental right to freedom of speech and expression. There are 3 essential features of this right, i.e., discussion, advocacy and incitement. The freedom of speech and expression can be curtailed when a discussion or advocacy leads to incitement. However, Section 66A has the power to limit all forms of discussions or advocacy, irrespective of whether such discussions lead to incitement. There is a clear distinction between powers that can be used to limit the extent of freedom guaranteed under fundamental rights and the powers that can completely prohibit the exercise of fundamental rights.

The Court further observed that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech. It includes both protected speech and speech that was innocent in nature. It creates offence that was vague and overbroad, and, therefore, is unconstitutional under Article 19(1)(a) of the Constitution.

The powers under Section 66A are prohibitory in nature and thus Section 66A fails the test of freedom of speech and expression.

Whether Section 79(3)(b) is constitutionally valid?

Section 79(3)(b) deals with the liability of intermediaries in certain cases. Only if an intermediary has knowledge or has been notified by the Central Government of any information available on its platform that is being used for unlawful purposes and it fails to remove such information, the intermediary is found to be liable. Article 19(1) allows freedom of speech and expression but does not allow incitement of violence or any other unlawful acts through the exercise of the right under it. Thus, Section 79(3)(b) is a provision that complements Article 19(1) and therefore cannot be deemed as violative of the right to freedom of speech and expression.

The Assam National Register of Citizens (NRC) case

In Assam Sanmilita Mahasangha v. Union Of India (2014), the constitutional validity of Section 6A of the Citizenship Act, 1955 was challenged to be discriminatory, arbitrary and illegal. Section 6A was enacted to enforce the provisions under the Assam Accords, 1985. Under the Assam Accords, several illegal migrants were deemed to be citizens of India.

Provisions of the Citizenship Act, 1955

Special provisions for citizenship

Under Section 6A of the Act, any person of Indian origin who came to Assam before 1st January 1966 from Bangladesh and had ordinarily been residing in Bangladesh ever since were deemed to be Indian citizens. However, if any person is detected to be a foreigner, that person will be deemed to be a citizen of India only after 10 years from the date of such detection.

Issue and judgement

Whether Section 6A of the Citizenship Act is ultra vires to the Constitution of India?

Section 6A of the Act not only granted refugee status to illegal migrants of Bangladesh but also granted them the citizenship of India subject to some conditions. Due to this, there were constant clashes between the illegal migrants from Bangladesh and the tribal and non-tribal citizens of Assam. These clashes have time and again led to the destruction of life and property. The right to life of the original citizens of Assam was being violated because of this immense inflow of Bangladeshi migrants due to which they were facing issues w.r.t job opportunities, lands, residential spaces, etc. The Bangladeshi migrants were entering forests and were disrupting the lifestyle of the tribal communities in those areas.

Even after considering all these points, the Court was of the opinion that the final conclusion as to this matter can only be given by a larger bench and thus, the matter was placed before the Chief Justice for constitution of an appropriate Bench for considering the matter. The final ruling in this regard is still pending.

The constitutional validity of triple talaq

In Shayara Bano vs. Union of India (2017), the constitutional validity of triple talaq was challenged. The Petitioner herein was a victim of constant domestic violence. She was divorced by her husband in the year 2016 through talaq-e-biddat, i.e., a practice wherein a man can divorce his wife by uttering the word talaq thrice. She sought a declaration that the talaq-e-biddat pronounced by her husband is void. The Court ruled in favour of the unconstitutionality of triple talaq in a 3:2 ratio wherein Justice R.F Nariman was part of the majority ruling.

Issue and judgement

Whether talaq-e-biddat is ultra vires to the Constitution

Marriage is like a contract that can be terminated under certain special circumstances. The Prophet of Islam had declared divorce as one of the most disliked lawful things in the eye of God. He further stated that only if a divorce is accompanied by good reason, it can be justified before God.

The Court after considering the views of the Prophet observed that a marital tie is fundamental to family life in Islam and a divorce breaks this tie between a man and a woman. Triple talaq is an instant process and is irrevocable according to Islam. Therefore, no time for reconciliation is provided to the parties unlike the other forms of divorce under Islam. It could be given without any reasonable cause as well.

Thus, this practice was termed as manifestly arbitrary by the Court while holding that a man cannot break a marital tie at his whim and fancy. An opportunity to make an attempt of reconciliation to save the marriage should be present at all times. In light of the same, triple talaq was held to be ultra vires to Article 14 of the Constitution. The recognition of triple talaq under the Muslim Personal Law (Shariat) Application Act, 1937 was also struck down.

The right to privacy is a fundamental right

In KS Puttaswamy vs. Union of India (2017), the collection of data for the Aadhar card system was challenged on the ground of violation of the right to privacy. The Court herein unanimously held that the right to privacy is a fundamental right guaranteed under the Constitution of India and that the Aadhar scheme was not in violation of the right to privacy.

Issue and judgement

Whether the right to privacy is a fundamental right guaranteed under the Constitution of India?

The Court observed that even though there is no express provision for the right to privacy under the Constitution, it can be deemed as an extension of the fundamental rights guaranteed under Article 21 of the Constitution. The right to privacy includes the right to informational privacy i.e., a person has the right to control information about himself and also to control the dissemination of such information.

The Court divided the right to privacy into the following parts:

Negative rights: The right to privacy is protected automatically under the Constitution irrespective of any separate law being in place for its enforcement.
Positive rights: It is the duty of the state to protect the right to privacy and enact laws for its enforcement.

The Court also opined that the right to privacy includes the right of control over an individual’s body, the right of protection of personal information and the right to autonomy over personal choices.

While observing the significance of the right to privacy, the Court concluded that under the Aadhar scheme, information was being collected with the consent of the individuals. The collected information was kept securely and there was no dissemination of personal information that occurred without the consent of the individual. Thus, the scheme was held to be constitutionally valid.

Entry of women in Sabarimala

In the case of Indian Young Lawyers Association vs The State Of Kerala (2018), several petitions were filed challenging the ban on the entry of women in the Sabarimala temple as unconstitutional. This ban was placed under the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.

Issue and judgement

Whether the ban on women from entering the Sabarimala temple was unconstitutional?

The Court observed that the fundamental right of religion guaranteed under Article 25 of the Constitution cannot be placed on a higher pedestal than the right of equality guaranteed under Article 14 of the Constitution and the right of non-discrimination guaranteed under Article 15 of the Constitution.

It was noted that the practice of disallowing women was a discriminatory practice based on sex and the ban cannot be called a reasonable classification under Article 14. Further, the right to worship of both men and women under Article 25 should be placed on the same footing and therefore, the ban on entry of women into the Sabarimala temple was termed unconstitutional.

Decriminalisation of homosexuality

In Navtej Singh Johar vs. Union of India (2018), the dispute regarding the constitutional validity of Section 377 of the Indian Penal Code, 1860 finally came to a conclusion. Section 377 was challenged on the grounds of violation of Articles 14, 15, 19 and 21 of the Constitution.

Issue and judgment

Whether Section 377 of the IPC is ultra vires to the Constitution of India

The Court observed that homosexuality is not a mental illness. It focused on the duty of the State to provide equal laws for all the citizens and stated that there can be no discrimination on the ground of a person’s sexual orientation. It further called for a regime wherein the sexual minorities could be protected.

In light of the same, the Court decriminalised homosexuality and held that homosexuality is not against the order of nature and any consensual act of homosexuality cannot be deemed as a criminal offence. It further held that every person has a right to choose the way he wants to live and also his sexual orientation.

Decriminalisation of adultery

In Joseph Shine vs. Union of India (2018), a writ petition was filed challenging the constitutional validity of Section 497 of IPC on the grounds of violation of Articles 14, 15, and 21 of the Constitution.

Issue and Judgement

Whether criminalisation of adultery is in violation of the provisions of the Constitution of India

Under adultery laws, a man who entered into a consensual sexual relationship with any married woman could be prosecuted by the husband of the woman. However, the woman, in this case, was not subject to any criminal punishment and a woman was given no right to initiate proceedings if her husband was an adulterer. This was held to be in violation of the right to equality that is guaranteed under Article 14 of the Constitution. The protection granted to women under Section 497 was also termed to be discriminative and violative of Article 15 of the Constitution.

It further observed that the concept of marriage and the matters involved therein constitute the private life of individuals. A criminal offence is an offence that affects society as a whole, but the present case falls under the private domain. In light of the same, it cannot be constituted as a criminal offence.

Some other cases

Reservations

In Jarnail Singh vs. Lacchmi Narain Gupta (2018), Justice Nariman observed that the exclusion of creamy layer from OBCs should be applied to SCs and STs as well. He held that the purpose of reservation is to protect the backward classes and the people in such backward classes who had socially uplifted themselves should not be allowed to claim reservations.

In Siddaraju vs. State of Karnataka (2020), he observed that reservations in promotions can be granted to people with disabilities under Article 16(1) of the Constitution.

Appointment of senior advocates in the Supreme Court

In Indira Jaising vs. Supreme Court of India (2017), he called for the adoption of a point-based system for the selection of senior advocates in the Supreme Court on the ground that the current system was arbitrary due to which there was a lack of diversity in the existing senior advocates of the Supreme Court.

Emergency Arbitration

In Amazon.com v Future Retail (2021), he held that interim awards passed in emergency arbitrations are enforceable under the Arbitration and Conciliation Act, 1996.

Conclusion

The Hon’ble Chief Justice of India, Mr. N.V. Ramana termed the retirement of Justice RF Nariman as “losing one of the lions of the Supreme Court”. On his last working day, he commented that he had to go through several piles of briefs over time but he enjoyed writing judgments. The number of landmark cases he was part of has surely shaped the stand of the Indian judiciary for the times to come.

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/J_0YrBa4IBSHdpuTfQO_sA

Growing inclination towards an Intellectual Property Law career in the past decade

Sneha Mahawar

November 18, 2021

This article is written by Jagriti Sanghi, an Advocate practising in the Courts of Hyderabad, Telangana. This article gives insight into Intellectual Property Law as the most exciting career choice in the past decade.

Table of Contents

Introduction to Intellectual Property Law as a career

Intellectual Property (“IP”) Law includes safeguarding ownership of creative property such as patents, designs, trade secrets, traditional knowledge, inventions, artistic works, literary works, and other copyright creations, etc. Developing a property takes years of patience and perseverance with whopping financial investments. As a consequence, it is crucial that the owner of property retains the undisturbed rights over the created property. It thus protects an extensive range of creativity and human effort. The role of advocates in IP commences here. An IP lawyer defends people’s inventions and creative works.

The Intellectual Property field covers complex yet interesting projects, which require an in-depth knowledge of its facets, methods, and developments. IP lawyers have to review documents, objections and examine technical materials. They need to prepare documents to file applications for trademarks or patents.

Eligibility criterion to become an IP lawyer

A candidate must possess the eligible qualification and intellectual skills. The minimum criterion to become an IP lawyer is a graduation degree in law. Additionally, a degree in Engineering/Science background is of massive help in making a career in patents within the field of Intellectual Property.

There are IP lawyers with law degrees and no technical background. They are mostly involved in so-called “soft IP” work which includes IP transactional, advisory, enforcement, litigation work, etc. The other category is of IP lawyers with a technical background with a degree in Science of Engineering who specialize in patents. They play a crucial role in refining inventions and preparing patent applications for securing rights. They conduct searches and analysis to find out patent infringement cases.

One has to choose whether they desire a technology-driven IP career or one with negligible technical work. For instance, patent and industrial processes as a career option require foundation and expertise in science and technology. But trademarks and copyrights comparatively do not.

Furthermore, one needs to understand that an IP law career may consume a lot of one’s time as it requires complete dedication and thinking. So an individual has to be completely sure before treading this path and making it their career choice.

Variety of tasks in the field of IP law

A few of the tasks in the field of IP law are as follows:

Patent prosecution: It includes filing of patent application, examination by the Patent Office, and post grant opposition and amendments.
Patent litigation: It includes patent disputes related to patent infringement actions in court. Parties to proceedings are represented by advocates with relevant IP knowledge.
Patent filing: It is conceiving one’s invention, then conducting a patent search to understand if the invention is unique or not. After that drafting of patent application and filing it in the Patent Office.
Patent search: It is searching for a present patent database to determine if there are any identical inventions or applications similar to the patents to be patented.
Copyright licensing: It is a transfer of a copyright from one party to another creating a “license to use”.
Royalty management: Royalty is payment for copyrighted works to the owner. Royalty management includes creating and managing a detailed contract, contract rights and royalty.
Copyright filing: It is the filing of copyright applications for authors, music composers, artists, performers etc. before the Copyright Office.
Trademark litigation: It is the process of filing lawsuits if there are illegal uses of trademarks, infringement, passing off or other claims.
Brand valuation: It is the process to calculate the value of a brand which another party is willing to pay for it.
Franchising and merchandising: It is the relationship between the franchisor and franchisee where license is granted to do the business. The contracts are to be prepared by the IP lawyers.
Examination and filing industrial designs: It is the process of filing applications for registration of industrial designs and examination of earlier registered designs.
Applications of Geographical Indications: It is the filing of applications for registration of Geographical Indications of a product.
IP strategy: It is a set of measures to manage intangible assets of business to align with their goals. It is to protect, optimize, and monetize assets.

Different job profiles to select from after choosing Intellectual Property law as a career option

The scope of IP law is quite broad in today’s generation especially since the last decade. IP law is an evolving and ever changing legal field. Job profiles in this career option are immense and hard work pays well. They are detailed as follows:

To file a lawsuit to resolve the matter in court when settlement is not reached.
To represent clients in dealing with others who are infringing Intellectual Property Rights by making unfair use of property without permission. The IP lawyers represent their respective clients in court proceedings or before concerned authorities.
To act as advisors, and counsellors for IP matters.
To draft agreements in IP matters such as license agreements, distribution agreements, assignment agreements, confidential information agreements, franchise agreements, amongst others.
To conduct research to interpret laws, developments and regulations for the clients.
To defend businesses against IP bullies who claim their rights too aggressively.
Patent as a career option generally requires a science background. The work of a patent attorney is to make an application for patent registration, enforcement of rights, contract negotiation, and filing cases for infringement of IP rights.
To review patent applications and prepare a concise summary as a Patent Searcher. It describes the invention and its potential uses.
To work with many high paying foreign clients who are ready to pay a good IP lawyer.

Potential employers for those who have chosen IP law as their career choice

These days law graduates have vast options to choose their career from. There are unlimited opportunities in work for exposure and incentives as an IP lawyer. As long as there is the imagination of people leading to inventions and innovations in the world, there will be a requirement of IP lawyers to shield the rights over those creations. IP lawyers can choose different capacities to be employed at such as law firms, corporations, government agencies, etc.

Law Firms employ IP lawyers to cater to the need of growing demands of businesses and organizations to protect their intangible and invaluable assets.
In many companies, IP lawyers are required to do IP related work. IP is very essential as it adds to the goodwill of a company. IP lawyers are employed to implement cutting edge practices in Intellectual Property asset management. Some sectors which offer employment to Intellectual property lawyers are, fashion, media & entertainment, music, IT sector, Pharma, sports, Tech industry and so on.
IP Paralegals are hired to work in government agencies, corporations etc. to prepare forms for trademark, copyright, patent application to be filed.
IP lawyers are employed as investigators in companies to detect if there has been any violation of IP rights.
IP lawyers are appointed to be lecturers in reputed universities to deliver lectures in laws pertaining to IP issues. An individual who has studied IP law in India can teach abroad with IP law specialization.
Many can become journalists who would collate information, analyze, write and publish a piece of information on IP laws for the public.
Various industries like media, broadcasting, sports, entertainment have a huge demand for IP lawyers.
Due to globalization, and the world becoming a single platform, there are many opportunities of outsourced Intellectual Property related jobs in India. This includes patent searching, paralegal, patent analytics, prior art searching etc. Legal services are very expensive in foreign countries, especially the United States. As a consequence, many IP experts are hired in India to do the work at a much reasonable fee.

Reasons why IP law is one of the most interesting career options

The scope for IP lawyers has skyrocketed and in the past decade is a dynamic and exciting career. Becoming an IP lawyer is rewarding and fascinating.
One of the tangible advantages as an IP lawyer is an attractive salary or income. IP lawyers who have a technical background are specialized in patent law which is in high demand with lucrative pay. The starting pay scale for an IP lawyer ranges from ₹1,52,322 to ₹12,03,913 per annum in India.
IP law is a recession-proof field where the impact of recession is minimal as inventions or creativity will never stop being rewarded.
The companies have realized the importance of IP rights for their goodwill which directly impacts the demand for IP lawyers.
Another added advantage is exposure to global trends, developments in science and technology.
IP pervades different streams like management, science, business, economics and is not limited to a pigeon hole. It offers a great learning potential for IP lawyers.
There are new challenges faced by IP lawyers every day. One needs to offer proactive solutions to resolve client’s issues. It increases an individual’s intellect and analytical ability.
IP litigation is a field which is evergreen. A law graduate needs to devote time and energy to gain relevant experience and make a mark. Intellectual Property Law provides a large scope to grow exponentially as it is the contemporary law developed over the last decade.
Growth in the IP industry is much more promising than other legal fields.
Once can opt for popular brand companies like Google, Samsung, Ranbaxy, etc. as they have a high research budget to be spent on inventions and creativity.
A person gets intellectual satisfaction which also makes one wake up in mornings with zeal and passion. For instance, one has to examine if a trademark is deceptively similar to other brands. It will never become a monotonous job. The IP matters are really challenging and have scope for presenting creative arguments.
There are options to choose international projects since global companies market their products to a wide range of public at global level. So IP experts in India can show their skills and dedication and slowly progress to international projects and maybe in near future to international offices.

Conclusion

An individual who practices IP law is associated with creativity and innovation. The IP law field requires an individual’s in-depth knowledge and awareness of laws to secure creations of mind and right interpretation and implementation. It is a good fit for those who are inquisitive and are looking for something more than conventional litigation or corporate work. The companies who deal with IP law range from media and entertainment houses to, R&D departments to Pharma. An IP lawyer is expected to have good deductive reasoning and analytical ability. They need to possess attention to detail and have a good foundation in recent developments and technical information. In today’s day and age, it is one of the most rewarding legal careers to pursue with the complete possibility of dealing with fine aspects of human experience.

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/J_0YrBa4IBSHdpuTfQO_sA

How to draft a software licensing (non-exclusive) agreement for an international software company : an insight

Oishika Banerji

November 18, 2021

This article has been written by Keerat Kaur pursuing the Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. This article has been edited by Zigishu Singh (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).

Table of Contents

Introduction

Humans have made inventions to ease their own lives and the lives of others. In technology, humans have reached a level of invention, wherein codes have been made to instruct the computer to perform specific functions. Moreover, to ease the conflicts between the inventor and user, they create agreements to be followed by the parties in question; in case they do not, legal obligations will be faced. The idea of writing this article is to understand one of the agreements known as software licensing agreements and further discuss what it is and why it is important. Finally we will dive into the process of drafting it for an international company.

Software licensing agreements

A software licensing agreement is a basic agreement in which a company licenses its software to the licensee. The Licensor makes a profit by licensing its software and on the other hand, the customers’ needs are fulfilled. When we divide the software license agreement, the words themselves give a lot of information.

Software is a set of information, programs, or applications that instructs the computer to do a specific task.
Licensing means permitting to use something, and here the thing is software.
Agreement stands for the legal binding between the parties by agreeing with each other.

A software licensing agreement is an agreement between the company and its customer where the company provides the license to the customer for the use of the software that the company owns. Such agreements contain aspects like how to operate it and install it, period of use, fees, and various other aspects as well.

Importance of software licensing agreement

It is important to have an agreement because of the following reasons: –

Let’s understand this with an illustration. As a licensor, we always want to have long-term benefits from the agreement, protection from copying it, and to have security measures in place for other infringements. You want others to use it according to your rules and regulations, and you also want to limit your liability. Keeping all these points in mind, let us consider the role of an agreement. The agreement gives you the right number of computers that can install your software and what type of users are permitted like educational or commercial and you can also put restrictions on reverse engineering, selling, or transferring the software are usually included in the agreement. Some of the benefits of having an agreement are as follows:

Prevent misuse of your software: – This refers to a situation in which there is no agreement signed and you give your software for use to a customer. Customers can copy and install it on their computers, and they may use it to make new ones by the use of reverse engineering which will lead to losses. So, here to avoid misuse of the software an agreement needs to exist.
It gives you the right of making rules and regulations: – Drafting an agreement gives you the right to make clauses according to the needs of the licensor but you should also keep in mind what the customer needs out of it.
It gives you long-term benefit by licensing rather than selling it: – Selling it will transfer intellectual property to the buyer and your role and opportunities of making profit ends here. But through licensing, you will remain the owner and will be able to keep generating revenues..
Length of time for using it and terminating it is in your hands: – The duration of usage can be determined through an agreement and also in case any infringement happens, you can terminate the agreement and ask for compensation for the loss you face due to the customers’ actions.
Keeping minimum guarantee rule: – You can keep the minimum guarantee rule by defining the obligations of both parties and there will be less burden on you,.here will also be lesser chance of disputes
In an agreement, you can specify a clause where you don’t choose to defend your intellectual property in any forum and avoid litigation costs.

There are no straitjacket rules or clauses to agree on , you can make it depending on your needs and also keep in mind what the opposite party needs out of the deal.

Types of software licenses

Proprietary Software;
Freeware;
Custom Software;
Open-Source Software.

1. Proprietary software: -It is commercial software, the access of which is given after paying the licensing fee. The source code of this type of software is not available, which gives the owner certain advantages.

2. Freeware: -This type of software is basically used for personal work. There is no licensing fee for it. Right to copy and modification as per need is permitted.

4. Custom software: -This type of software will be designed on the order of a company as per their needs.

5. Open-source software: – In this type of software, the source code is available, and it is free of cost. You can distribute it, modify it, and copy it.

Kinds of software licensing agreement

There are three kinds of software licensing agreements which are commonly used: –

Clickwrap agreements;
Shrink wrap agreements;
Browse wrap agreements.

Clickwrap agreements

The software downloaded online contains an end-user license agreement in which the user has to click on the “I agree” icon which refers to agreeing to the terms and conditions defined there or on the “I disagree” icon in the alternative. Here, the consent is not in writing but by an action, for example, clicking on the “I agree” icon.

Shrinkwrap agreements

These are in the physical form, for instance where the CD ROM of software is delivered, and it contains the information regarding the agreement on the wrap.

Browse wrap agreements

These agreements exist in the form of a link named “terms of use” “a user agreement” or “terms of service” on the page of the website. It contains certain clauses and if users do not wish to agree on them, they can leave the website.

How to draft a basic software licensing agreement (non-exclusive) for an international company?

Software licensing agreement for an international company is used by companies who own the software and give access to customers based in different countries. A non-exclusive agreement is the agreement in which the Licensor and licensee both are free to use the software and the licensor can give the license to others. The main clauses of an international software license agreement are given and discussed below: –

International software license agreement

Parties: -The contract starts with giving them information about parties signing the contract. Here the parties are: – one is the company or the person on behalf of the company who has the right of signing the agreement that licenses the software, the other party is the end-user, who uses the software. The personal data of the parties is written over here.
Definition clause: – Defining the terms which have a technical meaning is essential snce these terms, if not defined, can create confusion between the parties. It would be easy for both parties to clear terms for the smooth operation of the agreement. For example terms like source code, intellectual property, etc. need to be defined properly.
Scope of the service: – The scope of this agreement is that the licensor provides the software to the licensee for usage under defined terms and conditions in the agreement.
Term: -It defines the length of the agreement that is usually five years. It is related to termination and renewal clauses.
Price and payment: – This clause states that the Licensee shall pay the amount to the licensor within the defined period given in the agreement and also include the delivery charges. In an international software licensing agreement, the amount is non-negotiable until the licensor makes the adaptations according to the user’s specific needs. The currency in which the amount shall be paid will also be defined.
Exclusivity: – This is an important clause of this agreement. It states that the user has the exclusive right to the use of software and cannot share or resell it to a third party.
Warranty: – This clause lists down all the warranties. Licensor may warranty about the functioning of the software and can limit their warranty for possible damages that may arise.
Responsibility: – This clause limits the liability of the licensor but cannot be non-existent.
Intellectual property rights: – This clause determines the ownership of the software. In a software licensing agreement the intellectual property rights are not transferred to the licensee but remain with the owner of the software.
Termination of the contract: – This clause mentions the circumstances under which the agreement can be terminated. This clause is established against any fraud and/or breach of obligations defined in the contract.
Notices: – This clause gives the specific procedure for providing the notice. Giving the different channels of communications only through which notice will be considered as served.
Expenses and taxes: -This clause states that the licensee will be responsible for the payment of taxes imposed on licensing the software and all the expenses that occurred during the process of delivering software.
Applicable law and competent jurisdiction: – In case a dispute arises between the parties, this clause helps to refer to the competent jurisdiction under which the case will be decided. The law which applies to this agreement will be provided. In the Software License Agreements, when the user (Licensee) is a consumer, the competent jurisdiction will be one of his or her domiciles; on the contrary, if it is a company for which custom software has been made, it will normally be the jurisdiction of the Licensor.

How to avoid mistakes?

Some of the common software licensing mistakes: –

Software licensing agreements are known for their complexity. So, ensure that while drafting the agreement you go through each term and clause carefully to understand what exactly is being provided to the licensee. It is crucial to have the knowledge with respect to the variations in the licensor’s standard software agreement that could occur each year during the renewal of the agreement.
Keep a detailed record of usage of software licensing to avoid risk during a software audit.
Company’s Staff and employees must be trained with the process and policies of installing the software on the company’s data processors.
While licensing the software keeps one thing in mind which is flexibility, it can change the whole of the agreement. It can give the licensor an advantage in the future.
While drafting the agreements keep in mind the technical considerations, business considerations, and legal considerations.
Lack of planning could be one of the biggest mistakes that could waste a lot of time and money. Licensee companies should consider what they need and don’t pay for the license unless they need it.
What if the licensor goes out of business or is shut down? Who is going to provide support and maintenance?

In this case, the escrow clause comes into the picture. The Licensor shall deposit the source code, object code, and related documents into the escrow account. The Source code, object code, and related documents shall be released after the termination of this agreement or in the event of non-renewal of the agreement.

Conclusion

After the detailed discussion on the software licensing agreement, it is clear that “install, run and use the software” is not the smooth and short process it seems s but a complicated one that needs rechecks, focus readings again and again. It may be installed automatically or manually as well. So, next time think twice before blindly clicking on the “I agree” icon as they all are valid contracts, and you could be liable for the terms and procedures mentioned in the agreement. So, a software licensing agreement is an important tool to protect the licensor from fraudulent and unlawful use of their software.

References

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Big global trends creating massive opportunities in IP law practice today

Diganth Raj Sehgal

November 18, 2021

IPR-Chart_European-Patent — Image source: https://bit.ly/35OHFNP

This article is written by Jagriti Sanghi, an advocate practising in the Courts of Hyderabad, Telangana. This article details the global trends created in IP law practice in today’s age.

Table of Contents

Introduction

Intellectual Property (IP) law practice is creating massive opportunities globally. TRIPS governs global IP laws and most countries follow substantially similar IP laws. It is very easy to transition into other countries and practise in other countries on the global level. Very few such areas of law allow such international exposure. This article discusses a few of these global trends.

Digital media industry

Digital media is a fast-growing segment that has seen exponential growth. The expansion of streaming services, addictive content, accessible, efficient and low-cost circulation has led to its fast growth. The works for IP lawyers include IP creation, then IP rights enforcement and prevention from abuse of IP and finally the monetization of the created IP.

Social media platforms like Youtube, Instagram, Facebook (now Metaverse), Over The Top (OTT) platforms such as Netflix, Amazon Prime, Hotstar, Alt Balaji, Spotify, Gaana, and many others have resulted in huge growth in content creation and distribution. There is an explosion of copyright infringement.

These platforms are now a massive trend. They have an unlimited number of series, movies, stand-up comedy, music and other different kinds of content. There is a lot more content being created every day with the audience taking active participation in viewing the new content. It is very good for the industry to generate more work, especially for IP lawyers.

Money Heist, a Spanish web series on Netflix is so popular that it is being binged watched by audiences in 190 countries. The content is global and needs to be protected globally. Content has no boundary. Korean shows and movies are being watched by a growing Indian audience. Indian content is being telecasted in other countries. In the OTT generation, a series which is created in India could have viewers all around the world like China, Australia, the United States, African countries etc.

Scope of IP lawyers in the Digital Media Industry

There are many opportunities created for IP lawyers in the digital media industry. There is a huge increase in media contracts that deal with intellectual property. It includes content creation, development, distribution, advertisement, monetization, consultancy, freelance and employment contracts, profit-sharing agreements, investment agreements, joint development agreements, satellite rights agreements and so on. Since there are more and more projects, there are many more media contracts that are being signed, directly increasing the requirement of the number of IP lawyers.

There are compliance concerns in respect of content created on streaming or OTT platforms. IP lawyers legally vet contracts by examining the content in a detailed manner. This is done to ensure that no controversies/legal issues arise in the future as defamation suits, riots, courts hassles over content are all burdensome and expensive. It generates a lot of work for the IP lawyers since they are expected to go through the entire movie, series, comedy show, music and other content to analyse in detail the work of art.

There is a production of content licenses like music synchronization, adaptation, permission for biographical story, and image/pictures licenses which are completed meticulously by IP lawyers.

Merchandising

Merchandising and design is an enormous market like t-shirts, coffee mugs, posters, wall hangings, bags, face masks, school stationery, stickers etc. Anyone can start selling products and merchandise without taking a license from the owner of the IP. The piracy or fake merchandise might damage the market of the IP owner. Therefore, the trademark and design need to be registered globally to avoid piracy. IP lawyers are called to enforce and protect copyrighted works and trademarks.

Social media influencers

There is an upsurge in social media influencers and content creators online on platforms like Sharechat, TikTok, Reels, Dubsmash. These influencers are individuals with a large social media presence. They need advice on their legal rights, protection of their thoughtfully made content, monetization of content created that go viral and are used by page owners who build traffic by posting copied content. Monetization and gaining a fair share of money for the popularity of content on social media is where the IP lawyers are significant to provide assistance in handling the matters for content creators.

There is a requirement of IP lawyers for global enforcement of IP rights and royalty claims for unauthorized use of content created by influencers. Influencers are advised by IP lawyers about their rights and duties. There are cases of disputes over copied content for instance, where a random page on Instagram copies the viral content of another to get more followers on its page. IP lawyers come to the rescue in such situations by sending copyright infringement notices or royalty claim demands.

Influencer marketing is getting popular in today’s digital world where individuals with huge followers endorse a product/brand on social media. However, there are situations when influencers have bought fake followers and it compromises brand safety and paid advertisement money. Brands are also hiring IP lawyers to ensure that influencers are not committing misconduct or fraud online by depicting fake followers on their accounts. IP lawyers conduct a background check of the brand value of social media influencers and guide the businesses accordingly before moving ahead with the grant of contract. IP lawyers raise a red alert if they are not satisfied with the account of the influencers.

There are increasing legal regulations on influencer marketing. For eg., Social Media influencers are not supposed to endorse or market products without a detailed verification of the brand and its products. IP lawyers assist the social media influencers in checking the veracity of the businesses/products to be endorsed. Endorsements for false brands have to be kept in check as the audience gets influenced by social media influencers. Consumers can sue the influencers under the new Consumer Protection Act, 2019 as well for baseless claims endorsed by them. IP lawyers are also hired for suing social media influencers for direct infringement of trademark, contributory infringement, false endorsements, and unfair business practices.

Global tech-driven companies

Tech companies deal with inventions to a great extent. The global patent market is vast. A lot of money is pumped into the research and development of emerging technologies like Artificial Intelligence, machine learning, pharma and healthcare, the biotech industry, and 3D printing. There will be more and more work generated in this area like registration of patents in these technology patents.

IP strategy plays a primary role in the success of these tech companies. IP law challenges for the companies include international transactions, and cross border IP protection and enforcement. Big companies like Google, Amazon, and Flipkart need an army of IP lawyers to maintain the IP portfolio.

Taxation of Intellectual property, tax compliance process, taxation of international income etc. require the assistance of IP lawyers.

E-commerce

After the pandemic, businesses and markets had to go online. Now, they have to take branding and trademark seriously as on an online platform they have to create a unique brand. For eg., There are 100 sweet shops with the name of Aggarwal in the same city in different localities. But online it is not possible as many websites with the same name will create confusion among the public. Therefore, those businesses that do not register local brands, will have to create a brand. There is a shift from informal business to formal business. As a consequence, online businesses have to register these trademarks and protect them with the help of IP lawyers. There is a growth of a number of businesses registering their trademark.

This has created a vast amount of work for IP lawyers.

There is a rise in brands that are directly selling to consumers (D2C) online without a middleman such as Bewakoof, Jockey, Ferns & Petals. These brands need IP lawyers to register, protect, enforce, license, and franchise on a regular basis. It has become possible because of social media and e-commerce.

E-commerce is one of the fastest-growing industries in India. Due to rising smartphone demand, growth of fast speed internet networks, increasing purchasing power and ease of technology has led to the growth of the Indian e-commerce market. Some of the issues of the e-commerce industry are fraudulent transactions, fake goods, enforcement of e-contracts, logistics and warehousing contracts, Trademark opposition work, passing off suits, copyright infringement, action to protect trade secrets, statutory compliances, licenses, brand protection etc.

Startups, Small Scale Enterprises which go online, do not have enough means and resources for big law firms. They require quality services, and reasonable pricing for their compliance work, cross-border, domestic trademark registration. Millions of SMEs have gone online and global, especially after the pandemic. Demands for registration and protection have increased tremendously and will continue to steadily rise.

Gaming industry

The gaming industry is a rewarding sector for IP lawyers in terms of trademark, copyright, merchandising, brand valuation, franchising and patents related work of high-end computing equipment, registration, prosecution including filing a patent application, responding to objections and licensing contracts.

Brand registration, registration of work of art, infringement protection of characters, storylines, dialogues, merchandise products, music composition, look of the game etc.

There are contracts that need to be entered into with writers, music composers, artists, directors, cinematographers, animators, freelancers, game developers, among others.

Terms of service, confidentiality agreements, data protection, privacy policy, dealing with patent trolls, trademark trolls, licensing and adaptation contracts.

IP lawyers have to vet content, legal compliances, taxation of international income, global protection and enforcement of Intellectual Property rights, royalty claims for unauthorized use. Many game makers target the international market.

Online reputation management

There are fake reviews and fabricated stories for businesses like Google Reviews, Amazon Reviews, Nykaa Reviews, Zomato reviews etc. IP lawyers manage the online reputation of businesses. They sue for defamation or copyright, trademark infringement. This is another growing area of work for IP lawyers.

Conclusion

From the global trends as mentioned in detail above, it is clear that there is a massive demand for lawyers in IP practice who can manage these varieties of complex tasks ranging from brand valuation, prosecution, IP strategy, filing and enforcing of IP rights. There is a huge volume of such work and the clients are willing to make good amounts to get their problems resolved.

References

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Enforcement of foreign decrees v. enforcement of foreign arbitral awards : an analysis

Abanti Bose

November 18, 2021

This article is written by Anvita Datla, pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy from Lawsikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Table of Contents

Introduction

With the advancement of globalization and with India positioned as a major international and global player in the world economy, the law with regards to the enforcement of foreign decrees in India holds great relevance. The paper would essentially aim to discuss the provisions of enforcement of foreign decrees in India. It would further aim to look at the provision of Section 13 of the Civil Procedure Code and the various points under it which make a foreign judgment non-conclusive and unenforceable. The researcher will also look at the concept of Section 13 from the point of view of the enforcement of foreign judgments on divorce and then look at the way the enforcement of foreign arbitral awards differs due to the arbitration and conciliation act which governs it and the New York convention that India has ratified. The pro-enforcement bias in enforcement of foreign arbitral awards will be analyzed by way of judgments and how that is essentially contrasted with the uncertainty of law with regards to foreign divorce decrees which is a sphere in need of change.

The judgments of foreign courts are enforced keeping in mind that where a court having competent jurisdiction has already adjudicated and given its decision on a certain claim, there arises a legal obligation to fulfil such a claim in the country where such a judgment needs to be enforced. All nations may have varied private International law; however, by way of comity of nations, there are certain rules which are identified and accepted as common to civilized jurisdictions. “Through part of the judicial system of each state these common rules have been adopted to adjudicate upon disputes involving a foreign element and to enforce judgments of foreign courts, or as a result of international conventions”. Such identification is accorded not as an act of courtesy but on consideration of basic principles of justice, equity and good conscience.

The terms Foreign court and Foreign Judgements are defined in Section 2 of the Civil Procedure Code, 1908. As defined in Section 2(5), a foreign court is one being situated outside India and not established or continued by the authority of the central government, and as defined in Section 2(6), a foreign judgement means the judgement of a foreign court.In other words, a foreign judgement means an adjudication by a foreign court on a matter before it.

There are two ways through which a foreign judgement can be passed in India and the rule varies due to the distinction of the classification of the foreign country as a ‘reciprocating’ or ‘non-reciprocating territory’.

The concept of a reciprocating territory

A reciprocating territory is a term that refers to any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be reciprocating territory for the purpose of enforcement of foreign judgements. The list of reciprocating territories as per the provisions of Section 44A of the Code of Civil Procedure, 1908 is as under:

1. United Kingdom, 2. Singapore, 3. Bangladesh, 4. UAE, 5. Malaysia, 6. Trinidad & Tobago, 7. New Zealand, 8.The Cook Islands (including Niue) and The Trust Territories of Western Samoa 9. Hong Kong, 10. Papua and New Guinea, 11. Fiji 12. Aden.

As defined in Section 44 of CPC, the procedure that has to be undertaken for a foreign judgement of a reciprocating territory to be valid and for it to have the same force in India, can be straightaway executed by filing a simple application of execution following the procedure under Section 44A and under order XXI Rule 11(2) of CPC.

The concept of non-reciprocating territory

The procedure for getting a decree of a foreign country that is not a reciprocating territory to be enforced in India is slightly complex. As was held by Bombay High Court in the matter of Marine Geotechnics LLC v. Coastal Marine Construction and Engineering Ltd, where a decree is obtained from a non-reciprocating territory, the option of the decree-holder is either to file a suit in Indian Courts based on that foreign decree, or on the original underlying cause of action or both. The decree-holder cannot simply execute such a foreign decree. The foreign judgement holds the importance of just evidentiary value.

A blanket rule that applies in case of both reciprocating and non-reciprocating territories is that the foreign decree has to surpass the tests of conclusiveness as laid down in Section 13 of CPC which states that the foreign judgement shall be conclusive unless:

It has not been pronounced by a Court of competent jurisdiction;
It has not been given on the merits of the case;
It appears, on the face of the proceedings, to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;
The proceedings in which the judgment was obtained are opposed to natural justice;
It has been obtained by fraud;
It sustains a claim founded on a breach of any law in force in India.

The most interesting and intriguing part that encourages one to delve deeper into this set of tests, is how they affect the decisions of foreign divorce judgments.

Foreign divorce decrees

There might arise three scenarios in case of foreign divorce judgments that lead to difficulties that arise. Firstly a situation might come up when a woman in a foreign country residing with her husband finds that her husband has vanished, leaving her alone. There might be a second kind of instance wherein a woman residing with her husband abroad is taken back to India by way of deception or coercion. Lastly, there might be a scenario in which the marriage of the woman takes place before the husband leaves for a foreign country and then she is never given sponsorship for the purpose of visa and is not allowed to join him in that country. Apart from these, there might be many issues that might come up, as a multitude of Indians have settled in foreign countries and they resort to legal remedies for the marital problems they face. There has been a multitude of cases wherein Indian nationals who go on to reside outside the country would have actually formally married under the law of India but go on to get a divorce or legal separation in a foreign court. The result of such a scenario would be a grant of divorce decree in the foreign court with the parties being considered divorced in that country. Now if such a decree is not recognized in India where the parties actually got married, the parties would in fact be considered as still married as per the Indian law. This is how legal complications tend to arise with respect to aspects such as bigamy, remarriage, inheritance and so on and so forth.

There is a huge gap and difference in the divorces of different countries due to the wide gap in cultural traditions. India is called the land of diverse cultures, religions and ethnicities. The issue of the validity of marriages and matrimonial clauses such as recognition and enforcement of decree for divorce have always been problematic in this highly diverse country. There are a variety of personal laws. India is a country of a lot of religions. There is not one unified practice that can be applied in matters of matrimonial causes. The provisions of Section 13 of the Civil Procedure Code, 1908 have been applied time and again to examine the conclusiveness of the foreign decree. Principles governing matters within the divorce jurisdiction are so conflicting in the different countries that such an instance may occur in which a man and a woman are husband and wife in one jurisdiction but treated as divorced in another jurisdiction. Two of the most important cases that dealt with the question of recognition and are important for the purposes of enforcement of foreign decrees are the cases of Satya v Tej Singh and Narasimha Rao v Y. Venkata Lakshmi. Indian courts used to previously follow the English principle of lex domicile which looks at where the husband is domiciled to decide the jurisdiction. In the case of Satya v Tej Singh, the court of Nevada granted a decree of divorce when the husband approached the court stating that he was domiciled in Nevada. However, when the case came up for the purposes of enforcement in India, the court ruled that since the plaintiff husband had misled the Nevada court as he was not really domiciled in Nevada the court did not, in reality, have jurisdiction and thus the decree was unenforceable in India. Justice Chandrachud stated that recognition of a foreign divorce decree in India must depend principally on the rules of our private International law and such recognition is accorded not as an act of courtesy but by consideration of justice. However, the court did caution as to the possibility of limping marriages that would arise in case of non-recognition. As in different countries, the divorce jurisdiction is so complicated and conflicting that the problem of limping marriages becomes prominent. As there is no codified law on the matter of enforcement of a foreign divorce decree, much reliance has been placed on Section 13 of CPC and this continuous reliance has led to the 65^th Law Commission report in 1976, which, unfortunately, did not prove beneficial. As discussed in the case of Narasimharao v. Y Venkata Lakshmi, even the British were very hesitant to apply their laws in these family matters. The case even correctly pointed out the need for a change. The legislature has not even after so many years of Independence, thought fit to enact rules of Private International Law in this area and in the absence of such an initiative, the courts are forced to rely on precedents which in turn have relied on the English rules. The court stated that the relief granted must be in accordance with the matrimonial law under which parties are married. Though this decision does seem like a good step in enhancing the life of the woman who might be abandoned, the problem still stands regardless. The courts have throughout the time given decisions not just on the law but according to what the situation demands the decision to be. The law is not taken as it is but interpreted and in some cases, even decisions have been made which were not primarily on the basis of law. The predominant example of this is how courts these days have recognized the concept of irretrievable breakdown of the marriage for granting divorce even though it is not a valid ground for divorce. The court has in cases understood how the couple cannot be seen as living together anymore and the ‘sanctity of marriage’ that Indian law attempts to uphold cannot stand true in certain instances. These kinds of decisions are based on the rationale that the judges make out of the case presented to them and not on any law. Thus these kinds of situations shed light as to how recourse to relying on Section 13 to test conclusiveness might become inadequate. Strict adherence to this would mean that many of the cases would stand inconclusive even though they might have been decided differently if they were decided in the Indian court in the first instance. The approach towards foreign divorce decrees has been left to the discretion of the judges in absence of a specific law in this sphere which again might have its own merits and demerits. Merits are those of the court examining cases on a case to case basis and giving its decision and the demerit is that in absence of proper law, there is ambiguity and a sense of unaccountability that can be felt. Furthermore, as India has so many religions which have certain specific morals, what the country perceives as ‘public policy’ and ‘natural justice’ might be different. This can be understood through an example. There are some countries that have legalized same-sex marriages. However, enforcement of such a decree will not be possible in India because of the morals that the country holds coupled with the fact that the transgender community is regarded as ‘impure’.

Foreign arbitral awards

Foreign arbitral awards stand apart from foreign divorce judgments and the other kinds of foreign decrees and judgments as these are governed by the Arbitration and conciliation act. Furthermore, India has ratified The New York Convention on enforcement and recognition of foreign arbitral awards 1958. According to the convention, the country in which the award is made has the primary jurisdiction and is the only party that can annul an award. All the other signatory countries only have a secondary jurisdiction and can simply decide whether that award is enforceable in that country or not. The main objective of the New York Convention on enforcement of foreign arbitral awards in 1958, is to reduce the uncertainty in International trade arrangements arising out of differences in legal regimes.

The discretionary nature of Article V of the New York Convention on enforcement of foreign arbitral awards complements its pro-enforcement bias. The ‘permissive’ nature of this provision depicts that it is not mandatory; thus it preserves the courts’ discretion to enforce the awards. This is exemplified from the use of the term ‘may’ instead of ‘shall’ under article V of the Convention. The presence of grounds for refusing enforcement may not definitely lead to non-enforcement of the awards.

The intent of the legislature is also very much visible in the formation of the 1996 Act of Arbitration and Conciliation. The Act which was enacted in the UNCITRAL (United Nations Commission on International Trade Law) model very much demonstrates that it was made with an intention of providing higher autonomy in the arbitral process and further limiting the intervention by the judiciary to a very narrow circumference than what was there before in the legal regime. It can be seen as a minimal inference approach that has been even enshrined and is visible in the Arbitration and Conciliation Act, 1996 under Section 48. Under this Section as well, there has been using of the word ‘may’ that indicates the very same pro-enforcement idea. The defences which are used for purposes of opposing and contradicting the enforcement are to be construed in a very exhaustive manner in favour of enforcement. An analysis of the pattern in which case laws have been decided and the rationale is given thereon helps us understand this narrow and minimal interference approach. The most crucial judgment as it stands is the judgment given in Vijay Karia v Prysmian Cavi E Sistemi Srl which carries out the task of setting forth and clearing the avenues and scope of how far the court can go in rejecting the enforcement of a foreign arbitral award. The Supreme Court in this case cautioned the Courts from interfering with the enforcement of foreign arbitral awards. The bench constituting of Justice RF Nariman, Justice Aniruddha Bose and Justice V Ramasubramania discussed in great detail the scope of Section 48 of the Arbitration and Conciliation Act and the aspect of ‘jurisdiction of the supreme court’ under Article 26 of the Constitution of India.

The supreme court made the observation that under the scheme of the Arbitration Act, an appeal can be made when a judge refuses to recognize and enforce a foreign award. However, it cannot be turned the other way. There isn’t any provision that allows for an appeal against an order which recognizes and enforces a foreign award. The court also emphasized that the jurisdiction of the Supreme Court by way of article 136 of the Indian Constitution is not to be used in a way through which it can circumvent the legislative policy that is set out in the Arbitration Act.

The court revisited the decision of Renusagar Power Plant Co. Ltd v General Electric Co. and made the observation that by taking into regard the findings in Renusagar, it can be seen that the grounds set in Section 48 of Arbitration and Conciliation Act, 1996 nowhere present a challenge to the foreign awards on ‘merits’ and even the defence of public policy contravention is to be construed very narrowly. Under the guise of contravention of the public policy of the country involved, foreign awards cannot be set aside by second-guessing the arbitrator’s interpretation of the agreement between the parties. This provided the clarification that enforcement of foreign awards being governed by the principles of private International law, the doctrine of public policy as applied in the field of international law alone would be attracted. The fundamental policy of law thus must be a breach of some legal principle or legislation which is so basic to Indian law that it is not susceptible to being compromised. A mere infraction of a domestic law per se would not amount to a conflict with the public policy of law of India. In stating so the limited scope of even the public policy ground is made out. The supreme court went on to impose unusually high costs while dismissing the appeal to set a sort of an example as to how the precious time of the court is not to be wasted when it has already been dealt with before, as well as to depict depicting how foreign awards are to be enforced in most cases except for very major problematic ones.

Conclusion

The very sub provision which says that a foreign decree can be held to be inconclusive when it is not been given on the ‘merits of the case’ widens the scope of the non- conclusiveness and non-enforcement of the foreign decree as compared to when an arbitral award is unenforceable. It has been clearly laid out through case law that only in the rarest of opportunities when an arbitral award seems to jeopardise or put down the basic, most inherent values of India, is such an award to be non-enforceable. The case can never come upon parameters such as ‘merits’ and the scope of denial of enforcement is extremely low. The wide spectrum of points that are seen to make a foreign decree unenforceable, act as a good step in ensuring that the party gets justice and the fairness aspect is kept in mind as well. However, in cases like foreign decrees of divorces, too many barriers to enforcement can be seen as problematic. Though the grounds might help a woman in a situation in which her husband tricks her and gets a divorce decree in some other country leaving her in India, too many such barriers to enforcement also cause limping marriages where a divorce decree is given in some other country but is unenforceable in India. It can be seen as forcing the couple to be together when in reality one of the parties might not want to, causing graver issues in the marriage. The solution to this sphere of cases is to first follow the path taken in the enforcement of arbitral awards by forming a specific set of rules and laws in accordance with the international needs on the basis of which these foreign divorce judgments will be decided. The idea of natural justice should be the basic rule that should cause the non-enforcement and pro-enforcement bias as seen in the case of arbitral awards. it should be absorbed in cases of divorce decrees as well so that at the end of litigation the wife can be sure of her status. The idea of natural justice moreover should be observed strictly by the entire international community and courts everywhere so that an unfair decision is not passed which will, in turn, be inapplicable in India and hence leave the wife in an imbalanced and unsure position.

References

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Intellectual property and COVID-19 : lessons for the future

Diganth Raj Sehgal

November 18, 2021

IP licensing — Image Source: https://rb.gy/yqvgvl

This article is authored by Nidhi Bajaj, a law student studying in Guru Nanak Dev University, Punjab. This article seeks to analyse the impact of IPR, particularly patents on access to medicines and healthcare in the context of Covid-19 and what this could mean for the future.

Table of Contents

Introduction

The massive outbreak of COVID-19 brought the whole world to its knees. It also exposed the existing inequalities of income, age, race, sex and geographical location etc. which led to the disproportionate impact of the pandemic on the vulnerable sections of the global society. This dismal picture of the global healthcare system has a lot to do with inadequate and indiscriminate access to medicines, Covid testing kits, vaccines and other facilities. A related pertinent issue that came to light was the scuffle between IP and access to affordable medicines, vaccines and other crucial medical technology. It is worth mentioning that the debate between IP and access to medical technology has been going on for a long time, coronavirus only intensified it. In this article, the author will take you through the impact of IP on access to medical technology in times of a pandemic including what can be done to become future-ready.

IP and COVID-19

Intellectual Property is all about innovation and ideas and IP law deals with protecting these innovations and incentivising them. The WTO defines IP rights as the rights given to people for what are called “creations”. Intellectual property rights give a monopoly to the creator over their ideas for a specified duration and enable them to prevent others from using their creations and to negotiate payment in return for permission to use them. The developers of new technologies thus have the exclusive right to exploit their innovations during the period of such protection and are free to charge any price to cover their R&D costs and earn huge profits as well. The owner of a patent has the exclusive right to his invention and others are stopped from conducting research and manufacturing or distributing such patented products or processes.

Now, one might think, what IP has got to do with Covid-19? Well, the answer is almost everything. IP, particularly patents are an intrinsic aspect when we talk about global healthcare or dealing with pandemics. In the context of Covid-19 as well, vaccines, medical equipment, software apps, tracking systems, diagnostics and other innovations etc. have critical IP implications. The response to a pandemic is inextricably linked to IP as the development of vaccines and other medical technology constitutes an important part of public health preparedness.

TRIPS agreement and COVID-19

The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 1994 is the most comprehensive international level multilateral agreement on intellectual property that deals with the protection of intellectual property rights such as patents and trademarks.

Article 28 of the TRIPS Agreement grants exclusive rights to a patent holder to prevent others from producing, using or selling the patented product without their consent. Article 33 provides that the term of protection shall normally extend to 20 years from the date of filing.

It is pertinent to note that the TRIPS agreement contains certain flexibility provisions which provide for exceptions where the WTO members can permit the use of patents without the authorisation of the patent holder such as in case of extreme urgency or public non-commercial use and protection of human/plant/animal life. With regard to pharmaceutical drugs, nations have time and again resorted to compulsory licensing. Compulsory licensing is when a government allows a third party to produce a patented product or process without the consent of the patent owner or plans to use the patent-protected invention itself.

Are flexibility provisions of the TRIPS agreement sufficient to deal with a pandemic

The plain answer to this question is No. According to Dr. Hyo Yoon Yang, the compulsory licence provisions under Article 31 of the TRIPS agreement have proven insufficient:

To tackle already existing and emerging patent thickets and data exclusivity rules that impede production by the manufacturers other than the IP rights holders.
They do not address the need for transfer in technology and sharing know-how needed to build local and regional manufacturing capacity.
They do not cover copyright, undisclosed information and trade secrets.

Also, it is noteworthy that at the time when the TRIPS agreement was formed, about 94% of the global research and development was being conducted in developed countries only, the developing countries accounting for a minimal 6% only. The TRIPS Agreement thus ignores the basic premise that intellectual property cannot be expected to have the same effect in developed and developing economies.

Is patent law ill-suited to a pandemic

The patent law forms an important part of a country’s national innovation system as it encourages technological progress and innovation. However, during the pandemic, we witnessed some uncertainty and confusion around IPR in relation to medical technology which hindered the effectiveness of research and development of crisis critical products. Hence, the patent law while boosting technological progress and innovation in normal times somewhat failed to deal with the emergency conditions of a pandemic. Patent law encourages the creation of new ideas for the long run by slowing their dissemination in the short run. Such a premise becomes futile when you have an ongoing pandemic that requires accelerated production and dissemination of medical technology, essential drugs and equipment.

Waiving patent rights for COVID-19 vaccine

The proposal for temporarily waiving IP and patent rights for COVID-19 vaccines was first introduced at the WTO by India and South Africa in October 2020 and was then co-sponsored and supported by many low-income countries. The proposal was opposed by the USA and the European Union. However, on May 5, 2021, the USA reversed its stand and agreed to back the proposed waiver, a move that received mixed reactions.

Vaccine patent

Patents give the vaccine developers exclusive right to manufacture the shot developed by them. This also gives them full discretion to charge any price for covering their R&D costs and making significant profits as well.

Why patent waiver

The idea behind proposing a waiver is to suspend the rights of pioneering vaccine companies to enforce their patents and enable the generic manufacturers to make the vaccine, without the fear of being sued. This would lead to the manufacturing of vaccines in developing countries, thereby fostering the vaccination drive.

Is waiver a solution

Those against the waiver of patents on COVID-19 vaccine argue that removing or suspending the patent enforcement would disincentivize the pharma companies to invest and innovate in the research and development of vaccines. It is also argued that waiving patents is not the solution for coping with the shortage of vaccines as the major obstacle is the lack of infrastructure in developing countries to manufacture the vaccines and other crucial medical equipment. Also, waiving patents is a redundant measure when compulsory licensing is already permissible.

According to Thomas Cueni, director-general of the International Federation of Pharmaceutical Manufacturers and Associations, “Patents, and IP more generally, are the main reason that there is such a strong innovation base to work from to find solutions… there is no guarantee of success as few treatments and even fewer vaccines may prove to be safe and effective. This level of risk-taking would be impossible without a flourishing innovation ecosystem built on strong IP incentives.”

Getting ready for the future

International cooperation

International cooperation between governments and public-private institutions etc. can play an important role in improving access to the technology needed to produce crisis-critical goods such as mass ventilators, testing kits and other equipment in the case of COVID-19.

In May 2020, WHO launched international cooperation and collaboration among countries and various institutions through its ‘Solidarity Call to Action’ to realise equitable access to COVID-19 health technologies through a pooling of knowledge, intellectual property and data. WHO urged the Governments and other R&D funders to take action for promoting innovation and facilitating open sharing of knowledge, intellectual property and data necessary for prevention and treatment of COVID-19. Another such measure of international cooperation and collaborative effort is the ‘Open Covid Pledge’, a pledge to share IP in the fight against Covid and for encouraging the development of cures for COVID-19 by making IP relevant to COVID-19 freely available.

Voluntary initiatives

Many organisations, institutions and corporations undertook collective efforts and voluntary initiatives to resolve the difficulties posed by the pandemic. Some of the initiatives taken by private players to improve R&D and access Covid related equipment and medicines are as follows:

Use of open licensing models collaboratively to develop hardware for resolving supply chain weakness;
Commitment to non-exclusive and royalty-free licensing;
Publication of scientific data on a free-to-use basis and free access to other copyrighted scientific literature ;Publishing of technical specifications of vital equipment such as ventilators;
Knowledge sharing that allowed others to manufacture and access technologies;
Permission to use text and data-mining and machine-learning technologies;
Free access to patented technologies and protected designs related to diagnosing, preventing, containing and treating COVID-19.

Public health emergencies and direct government support

IPR recognises the efforts of the crucial stakeholders who take huge risks to bring innovations to the forefront by allowing them to reap the benefits of incurring huge costs in R & D with no sure chance of success. For example, A patent holder can restrict others from accessing the patented technology without his permission and can permit the same by charging any costs. A patent holder gets the exclusive right to his creation for a specified period (20 years in the USA and India). Patent rights thus slow the pace of diffusion of a new invention by restricting output, blocking competitors and raising prices. This is essential to foster innovation and the development of advanced technology. But this cost and benefits approach of patents is of no help in times of a global emergency like the ongoing pandemic. In present times, our goal is to accelerate the process of vaccination and not to slow it down.

However, this poses a significant question. If patent protection should be taken away in times of a global health emergency, then how to incentivise the drug makers to undertake the huge R&D costs for developing vaccines and other medical technology while taking away their exclusive rights over the production and sale of such technology?

One of the ways to tackle this is through direct government support including public funding of research and development and the making of purchase commitments by the government in advance to buy large numbers of doses at set prices, offering huge profits and paying the drug companies generously etc. Thus, providing superior incentives to pharmaceutical companies as compared to those available under the patent regime in normal times will be a preferable solution.

Flexibility in the IP system

The IP challenges faced during the Covid-19 pandemic have further stressed the importance of well functioning IP systems which would consider the needs of a wide range of stakeholders including research and development institutions, start-ups, investors and most importantly of the public at large who ultimately benefit from the innovation. However, the implementation of such a regime is not at all easy to achieve. This would require significant amendments in the domestic IP framework, including the implementation of the provisions of the TRIPS Agreement that provide flexibility for public health purposes and their application under national law. The IP regime provides for certain exceptions to patent rights for supporting access of countries’ to medical technology and innovation. The inclusion of a research exception in the domestic IP laws where it is currently absent can be resorted to as well. In countries where research exception is available under domestic laws, the research and development on the patented Covid-19 technology do not constitute patent infringement. Also, a regulatory review exception permits the use of patented technology without obtaining the consent of the patent holder to develop information to obtain regulatory marketing approval. Compulsory licences and government-use licences are other available measures that prove beneficial in this regard.

Conclusion

Prof. Carlos M. Correa has rightly said that “IP is not a magic tool. It is not just by implementing patent law that we will promote innovation. It would depend very much on the particular conditions, infrastructure, research and development capacity and industry profile of a country”. There are concerns that IPR is giving more room to technology holders to retain technology and to not share it. Such a stance might not be suitable in the situation of a pandemic. There can never be a choice between profits and people. IPR has to give way to greater concerns and public health goals. Thus, a major reform in the IP regime is much called for to ensure the structuring of incentives in such a way that the profit-seeking motives of drug companies and global public health goals are well aligned.

References

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Convention on the law of the sea : Indian Maritime Security

Abanti Bose

November 18, 2021

This article is written by Amrita, pursuing 6-Month Growth Camp: Preparation for LLM Abroad from LawSikho. The article has been edited by Zigishu Singh (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Table of Contents

Introduction

We are hearing the quote ‘Water is Life’ right from our primary class which covers more than 70% of the earth’s surface. It is one of the top factors considered by scientists when they talk about life on other planets or the moon etc. Besides its necessity, it also has importance when it comes to territorial jurisdiction regarding seas or oceans as history is full of incidents having multilevel claims or counterclaims of maritime resources or sea routes which later results in sovereign warfare. It is a crucial geopolitical subject especially, for a developing country like India which is covered with water i.e. sea/ocean from three sides. Even Vasco-da-Gama is not famous for his profession as a trader but everybody knows him as an explorer who has discovered the oceanic route to India from Europe. This discovery was so crucial because it was a free way to trade & travel as there were no fixed sea laws as such at that time. However, time changed and the concept of Law of Seas was displayed as a structural pillar of International Law.

Understanding its exigency, the Law of Sea was codified by the United Nations which comprehended the importance of the world’s oceans/sea with the United Nations Convention on the Law of Sea (UNCLOS) signed in 1982. With this Law of Sea Treaty, different countries entered into international agreements for establishing a legal framework for all the sea related bilateral connections considering the maritime activities of the respective parties. Though these treaties have enshrined many of the ocean space related issues as these matters cannot be kept in a cold box. As its infringement/manipulation has happened numerous times, the best live example of the same is the regular dispute arising out of fisheries activities happening in between India and Sri Lanka.

Focusing on the momentous maritime security necessity of sea laws shall be the limelight in this discussion. Signifying its relevance, the emerging sea convention with its executive bodies/organization will be briefed along with a summary emphasizing India’s significance, being a peninsular country. After the overview of past and future situations with a predictive approach, the researcher will try to suggest the best possible strategy for safeguarding India’s interest. Extracting essence from the whole deliberation this article will conclude the topic with its brief understanding of this concerning subject matter elaborating needs/ requirements for improvising the current scenario.

Ineluctable importance of sea laws

As we all know, the major portion of the earth is covered by sea/oceans; its relevance cannot be denied in any case. Coastal borders are not only relevant for trade/transportation or natural habitat but it is also crucial for scientific research and technology development. More than that, the whole ecology system of the earth depends upon oceans as it actually regulates the climate. The above highlighted significant facts can help everyone realize the importance of sea laws. The aptness of the maritime regulations is even more for any country having coastal borders like India, Sri Lanka, Australia and Russia etc. For emphasizing the key points which necessarily require standard sea regulations they are discussed in detail as follows:

Setting Coastal Limits:- Disputes over the control of the sea/oceans are not new at all, history is full of these examples where neighbouring countries have had conflicting claims over their coastal areas. Therefore, creating a fixed standard for delimiting the coastal area with a baseline is very important to avoid frequent disputes which can even lead to a war between the disputed regions.
Navigation Rights: – From ancient times, the sea route was the vital mode of travel and trade, though airways have given a better substitute still sea navigation has not lost its importance.
Exploitation Regime:- As sea/ocean is a pivotal resource that not only facilitates trade or travel but is an unknown treasure that has not even been fully uncovered till now. Thus, a strong structure of regulations for the same is very much important. With the strict regime, every continent/region can fix their limits and determine its scope of using this resource. The precise limitation can help in the following demarcation:-

Exclusive Economic Zone– Before considering the oceans as a sea route for travel and business we need to understand how the coastal border plays a vital role in the survival of the populations living at that place. The sea has always been a source of food and various other jobs/activities which has a remarkable effect on the economy of the country;
Continental Shelf – Fixing the area of the land undersea/ocean on the edge of a particular region is very much important as it can provide a sovereign right for exploiting this resource to the fullest without any hassles/interruption of other countries;
Marine Scientific Research – Seas and Oceans provide the medium for growing industries such as deep seabed mining which involves extracting deposits of the seafloor and submerged minerals or even metals etc. If the jurisdiction is not fixed then there will be a continuous argument/quarrel for claiming authority on this asset.

Universal Participation:- Discussion on marine regimes cannot be finished without ensuring the participation of maximum nations/continents/countries on which those regulations shall be applied. Hence, all the participants are bound to follow a fixed marine regime uniformly.
Settlement of Disputes – Redressing grievances is an important part of any statutory framework. Human history is full of incidents that illustrate that the absence of uniform marine regulations leads to conflicts. Boundary disputes arising out of a gradual shift of the contours of water bodies is the best example of the same. Accordingly, in case any of the countries have some grievance, it should be taken up by the uniform dispute resolution team/body.
Pioneer Investors: – After making a uniform standard marine regime with universal participation the next critical point is inputs required for the excavation of sea resources. Every search, discovery or development requires a huge amount of money which can be sponsored by some investors. Hence, the formulation of a commission or committee for making a standard framework for the investors who are interested in exploring marine life is also required.
Protection of the Marine Environment – It is already being discussed that maritime life may exist only underwater but it affects the ecology of the entire planet. Therefore it is the fundamental obligation to preserve the marine environment and exploit this resource with that much responsibility that it harms this asset to the least. While stipulating marine rights the responsibility of its protection and safety should also be fixed. So, privileges and liabilities can go hand in hand and marine life can prolong in the future for our upcoming generation.

Incorporation of sea laws and their related institutions and forums

Considering the severity and necessity of a uniform structure for protecting the marine environment and the interest of peninsular regions, the United Nations (UN) has taken the initiative to lay down the structure for the regime of sea laws. After the Second World War, in 1948 the International Union for Conservation of Nature (IUCN) was created as an international observer in the UN General Assembly. Later on, relying on the basis of international customary rules, the Geneva Convention was established in 1958 which consists of mainly four treaties i.e. Convention on Territorial Sea & Contiguous Zone, 1958; Convention on the High Seas, 1958; Convention on Fishing & Convention of Living Resources of High Seas, 1958; Convention on the Continental Shelf, 1958 and Optional Protocol of Signature concerning Compulsory Settlement of Disputes, 1958. However, after twenty-four years, the UN incorporated another convention i.e. United Nations Convention on Law of the Sea (UNCLOS); codifying the above conventions. The UNCLOS was initially signed in 1982 and enforced in 1994 after all the ratifications. So that all the UN members can maintain peaceful relations with each other and also maintain the ecosystem of the sea & its continents in a comprehensive manner. In a broader sense, the UNCLOS covers more or less all the in and out aspects of sea life. The same can be understood with the following points:

Sovereignty: – Countries/states can exercise their sovereign rights in their territorial sea up to the limit of 12 nautical miles without any restriction. Further, coastal regions have the liberty to exercise jurisdiction within its Exclusive Economic Zone (EEZ) up to 200 nautical miles; for extracting natural resources, doing marine research, enjoying traditional freedom and environment protection [Referred article- 77, 78, 87, 112, 115, 126, 125, 142, 193, 238].
International Navigation:- All the countries are allowed to manage its straits and regulate international navigation including submarine cables etc. [Referred article- 34,26,41,43, 90,97, 233].
Rights of Archipelagic Countries:- Group of related islands like; Bahamas, Fiji and Philippines etc. have sovereign rights to establish sea lanes/routes between and the outermost points of islands [Referred articles: 46 to 54].
Rights of Land-locked Countries:- Regions that don’t have any coastal borders like Nepal, Bhutan, Ethiopia and Kazakhstan etc. shall get a fair chance to participate in enjoying sea routes and exploitation of sea ecology with its special protection [Referred articles: 69, 124 to 132, 254].
Bordering Regions: – Besides the provided rights/privileges all the countries sharing borders are required to cooperate with each other while using the sea route or exploiting resources of sea life. The relevance of this liability can be better understood by the relation between India and Sri Lanka [Referred article 42, 44, 123].
Marine Pollution:- All the states/countries are liable to prevent damage caused by violation of international obligations in any manner [Referred articles 43, 192 to 196, 199, 204, 207 to 222].
Technology Development:- Likewise the above responsibility, the countries having developed marine technology are required to promote and share the same with other regions on the basis of fair/reasonable terms and conditions [Referred articles 144,196, 202 to 203, 266 to 269, 275 to 277]
Dispute Resolution:- All the states/countries are required to resolve their marine disputes subjecting to the interpretation of convention applications [Referred articles 14, 22, 186 to 191, 264 to 265, 279 to 285]

Along with UNCLOS, different bodies were established which can act as an enforcement authority as well as redressal forums for rectifying any discrepancies occurring in its implementation. First is the International Tribunal for Law of the Sea (ITLOS) [dispute resolution mechanism]; second is International Seabed Authority [the intergovernmental body that regulates mineral-related activities beyond the limits of national jurisdictions] and third is the Commission on the Limits of the Continental Shelf [demarking the outer limits of the continental shelf]. Besides all the above agencies, in 1948 another body was incorporated for developing international regulations for improving marine safety i.e. Inter-Governmental Maritime Consultative Organization (IMCO). Later on, in 1982, it was renamed as International Maritime Organization (IMO) while UNCLOS replaced Geneva Conventions. Along with this, Indian Ocean Commission (IOC) was also established as an intergovernmental organization that works with a mission to fraternize the interests of its member countries and protect natural diversity.

Further, other UN institutions/bodies like International Council for the Exploration of the Sea (ICES), Division for Ocean Affairs and the Law of Sea (DOALOS), International Labour Organization (ILO), Food and Agriculture Organization (FAO), United Nations Educational, Scientific and Cultural Organization (UNESCO), United Nations Industrial Development Organization (UNIDO), United Nations Development Programme (UNDP) and United Nations Environment Programme (UNEP) are regularly working for protecting the sea environment and settling path for settling sea disputes in harmonious way.

Implications pertain to India as a peninsular nation

As a founding member of the UN, India was always a part of all the initiatives taken by the UN in any manner. While developing a sea law convention, India has played a constructive active role and has been part of the same since 1995. Active participation in contemplation of this convention was very much crucial for India due to its three-way territorial borders covered with water which makes it a peninsular region. Specifically, India shares its maritime zone with a total of seven countries i.e. Bangladesh, Pakistan, Thailand, Myanmar, Indonesia, Sri Lank and Maldives. Being a peninsular nation India has to face continuous issues of overlapping liabilities and jurisdiction which required a central coordinating body with uniform provisions for governing sea disputes. For the same, using its sovereign powers, India has passed different statutes and even amended its constitution for complying with this subject matter. Legal enactments aligned with the sea laws can be summed up as below:

Article 297:- By the 40^th Amendment in the Indian Constitution, limits of territorial waters, continental shelf and EEZ along with other maritime zones like land or minerals etc. shall considering to be administered by the Union under any law made by the Parliament of India;
Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976:- Along with the above-said amendment, the separate statute was enacted wherein rights and jurisdictions were specifically determined by the Central Government of India;
Coast Guard Act, 1978:- With this statute, a body to enforce maritime law was established i.e. Indian Coast Guard (ICG) which work as a search and rescue agency within the jurisdiction over the territorial water of India including EEZ and contiguous zone which is the territorial sea up to 24 nautical miles;
Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981:- This statue was introduced to end poaching (illegal fishing) activities and protect the natural resources of EEZ by fixing license system;
Merchant Shipping Bill 2020:- Complying with different international conventions and indices like the ease of doing business of the World Bank, the government is planning to pass comprehensive legislation dealing with all the merchant shipping activities. This bill will replace two old statutes i.e. Merchant Shipping Act, 1958 and Coasting Vessels Act, 1838 with an objective to increase trade, protect the Indian coastline & its sea life, minimize marine pollution, enhance accountability and reduce unnecessary compliances for the trade.

Here it is pertinent to notice that even after the invention of airways, the maximum portion of trade is still done via sea route only, thus it comprises a significant portion of the Indian economy. Nonetheless, as every privilege comes with some liabilities, therefore, having boundaries connected with sea/ocean also has prominent pros and cons with any situation. Therefore, India has to keep an eye on each and every activity on the sea as India has been targeted by foreign entities via sea routes mainly. Historical data of disruption faced by Indian coastal territories will be discussed in the next part.

Past incidences : disputes faced by India being a peninsular nation

Apart from the landmark era of Vasco-da-Gama discovery and British arrival; India has faced a catena of infringement cases pertaining to their coastlines limits. There is no doubt regarding the fact that as a peninsular nation India has numerous benefits from the tremendous source of maritime resources which any land-lock nation misses out. However, flipping a coin can change the whole game as the Indian Ocean can be an easy target for foreign invasion or maybe a demographic interruption like Rohingya people coming from Burma (Myanmar). For understanding the severity of the concerned discussion, some latest international issues pertaining to UNCLOS implications can be explored which consequently affects India in more or less manner. Same is briefed as below:

Freedom of navigation operation (FONOP):- Derived from a customary international principle i.e. ships flying the flag of a sovereign state. FONOP is a principle whereby ships with a sovereign flag are free to sail without any interference of other nations/states apart from an exception provided in the international law [Article 87 of UNCLOS]. Though the covid-19 pandemic is not yet ended, in April 2021 US Navy conducted FONOP in the Indian Ocean and entered into EEZ near Lakshadweep which is against the statutory provision of India’s Maritime Zone of India Act, 1976. This incident is the best example where developed countries are targeting developing countries to show their power and maximize their freedom of using & exploiting natural resources without bothering about other interests in EEZ nations. It is ironic that even now UNCLOS is a tradeoff between the developed and developing countries.
China’s Sea Wing Glider Drone: Before the pandemic, at the start of 2019 Indonesia has tracked down four sea drones launched by the Chinese Navy i.e. People’s Liberation Army Navy (PLAN). Without resolving the said issues, China has again deployed another underwater drone glider in the Indian Ocean in December 2020 with a tag of naval intelligence purpose. This is reminiscent of the issue of the standoff at Ladakh which reflects the deadlock situation between India and China. Further, as per the study report of Asia Maritime Transparency Initiative China operated “by far the largest fleet of government research vessels” in Indo-Pacific Oceans. With this, it is clearly evident that enlarging the operational scope and geographical coverage by China will directly target/endanger the resources of the Indian Ocean and coastal borders of India.
Enrica Lexie Mishappening: In 2012, an oil tanker “Enrica Lexie” from Italy was passing off the Kerala (India) coast whereby two Italian marines’ officers killed two Indian fishermen by firing warning shots. Consequently, the Italian oil tanker was detained by the Indian Navy. For releasing their citizens, Italy approached ITLOS in 2015 and this issue was heard by the Permanent Court of Arbitration in 2019. For closing the case, Italy was ready to pay compensation and submitted that Indian courts don’t have jurisdiction to try marine issues. In July 2020, the court accepted the submission made by Italy by recognizing ‘functional immunity’ as the Italian marines were engaged in the government of Italy mission. Further, it was held that India is not liable to compensate Italy for detaining their marine officials but Italy has to pay compensation to Indian deceased fishermen’s families. Accordingly, the amount of compensation was fixed with the mutual consent of both nations.
Indo-Bangladesh Maritime Border Dispute: Even after settling the four decades older maritime border dispute between India and Bangladesh by ITLOS in 2014. Bangladesh is still raising formal objections before the UN Secretary-General questioning the baseline estimated by India. This issue turns out to be a grey area for Bangladesh in the same way India sees Pakistan Occupied Kashmir (POK).

Adding to the above glimpses there is ‘n’ number of cases wherein Indian marine rights are somehow affected. Having a long-standing history in dealing with sea disputes, most of the time India has been party to the international disputes as many ships sailed to India and from India. Thus, most of the sea laws and regulations have some direct or indirect interrelation with Indian maritime rights.

Foreseen possibilities : for and against strategy

Even before the era of Vasco-da-Gama India has always been a soft target for pirates and rich nations in the name of trade or exploitation of national resources due to its unique geographical position. Therefore, codification of marine/sea laws is of utmost relevance for any nation, especially those having territories adjacent to sea/ocean, just like India. Hence, India’s involvement in recognition of UNCLOS is inevitable and more than that required of a necessary convention for conserving maritime rights from developed nations with a uniform code of conduct. However, this was just a minor step for securing its position in the global centric era targeting its rights over the Indian Ocean. Being a developing nation, India is required to understand not just the virtues of UNCLOS but also its vices. Though, the UN is always lauded for its extraordinary efforts for uniting all the nations as a single entity. However, it indirectly gives most decision-making rights to developed nations only, which is the hidden truth behind any kind of assistance provided by a wealthy state. Hence, India should not wholly rely on the protection and support provided by UNCLOS for conserving its maritime rights over the Indian Ocean and protecting its coastal lines borders.

With the aforementioned vignette description, one can easily figure out the severity as well as the sensitivity of this subject matter. The Indian Ocean has always been the centre of attraction for the world with a tag of travel, trade and research etc. for the rich nations; even cases discussed previously also reflect the same situation. If India remains silent on US’ FONOP and China’s sea drone incidents, then this lack of reaction will surely boost their interest and no one should be surprised if China initiates a FONOP or the US launches a sea drone in the Indian Ocean. This situation also may give wrong signals to countries like Bangladesh and Sri Lanka which will definitely make things worse. Thus, it is preordained that India has a long way to go for justifying its authority over the Indian Ocean and its resources, which are necessary for its coastal border security. There is no doubt that the engine of growth and development can run only with a harmonious framework including multiple nations so India can’t discard the position of countries like North Korea. Accordingly, India is supposed to play safely while dealing with other countries’ disputes related to the cumulative exploitation of sea heritage.

Considering the above situation, India has to understand the utility of maritime reservoirs in monetary terms and focus on a ‘Blue Economy’ by gripping its dominance over its coastal lines. This could be the best chance as last year only; India was admitted as the fifth observer to IOC along with others viz. China, Malta, European Union and International Organization of La Francophonie (OIF). In addition to this, India should make efforts to minimize disparities between its statutory provisions and UNCLOS’s provisions. Further, India should also ponder on drafting a new national maritime policy codifying its holistic sovereign rights under UNCLOS. This could also assist to make a base for negotiating business and harmonious relationships with other adjacent countries. Since 2005, bi-annually coordinated patrols happening between India and Thailand with a title of CORPAT. In the same way, the appointment of an Indian national, Neeru Chadda, as president of the Seabed Dispute Chamber in October 2020 could also be used as a golden chance to show its predominant position in emerging maritime laws. Summing up; the Indian Prime Minister’s strategic goal to conserve maritime space and promote cooperation with a principle of Security and growth for all in the Region (SAGAR) is also commendable.

Giving the above pointers for ramification of maritime security of India’s and its code of conduct may possibly be considered as a fair attempt for complying due diligence for protecting its geo-political interest as a whole.

Conclusion

Sea/ocean has always been an asset for human beings. Humans have been exploring sea reservoirs right from their origin but till now even after developing so much technology we have not reached up to fifty per cent of the potential. Ergo sea/ocean actually still remains an unexplored world for us just like outer space. Intending on India’s maritime security, the outcome of the whole discussion evaluates the current position as a valley situation for India whereby an adjacent country i.e. China is constantly expanding its involvement in the Indian seas in the name of research or development. Though its concealed target is to indirectly conquer other states under their dominance which makes it very clear that Indian maritime security is actually at stake as its three ways are covered by the Indian Ocean, Bay of Bengal and the Arabian Sea. Considering the power and strength of China; no other country will intervene if China attacks India labelling its invasion of the Indian Ocean as surveillance operations etc. Further, India is already facing numerous maritime disputes with Sri Lanka and Bangladesh so keeping an eye on its coastal borders and maritime heritage is very much important.

Accordingly, for maintaining India’s esteem at the international level the requirement of a focused and compendious strategy has a lot of weight. All the efforts discussed in the preceding sub-title are suggestions against present and upcoming challenges coming before the sovereignty of Indian maritime rights. Concluding this discussion with clubbing the understanding of the whole discussion in one statement could be; for ‘securing maritime’ security India has to put all the efforts into it with an evolutionary approach and participate in the race of survival of the fittest.

References

United Nations Convention on the Law of the Sea of 10 December 1982
Overview and full text [Page last updated: 11/02/2020]

Link:https://www.un.org/depts/los/convention_agreements/convention_overview_convention.htm

Maritime Laws in India by Sanchit Meena

Link: https://lexforti.com/legal-news/maritime-laws-in-india/

Law of the Sea by Robin R. Churchill on Britannica.com

Link:- https://www.britannica.com/topic/maritime-law/Components-of-maritime-law

Law of the Sea: India’s Policy Options [Journal Article] by Prabhas C. Sinha

Link: –https://www.jstor.org/stable/43951398

Why India needs to strengthen its maritime laws and regulatory mechanisms by Aditya Manubarwala and Bhavyata Kapoor

Link: https://indianexpress.com/article/opinion/columns/why-india-needs-to-strengthen-its-maritime-laws-and-regulatory-mechanisms-7379949/

Decoding the laws that administer the Indian seas by Ayush Verma

Link: https://blog.ipleaders.in/decoding-laws-administer-indian-seas/

Law of the Sea: An Analysis of Contemporary Conflicts by Subodh Asthana Link: https://blog.ipleaders.in/sea-law/
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Link: https://digital.sandiego.edu/cgi/viewcontent.cgi?article=1188&context=ilj

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The ‘Enrica Lexie’ Incident (Italy v. India) Link: https://pca-cpa.org/en/cases/117/
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India, China, and differing conceptions of the maritime order by Iskander Rehman

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China widens presence in Indian Ocean through massive inroads in Djibouti by Dipanjan Roy Chaudhury Link: https://economictimes.indiatimes.com/news/defence/china-widens-presence-in-indian-ocean-through-massive-inroads-in-djibouti/articleshow/86676234.cms
The UNCLOS Isn’t Perfect, and it’s Time We Acknowledge That by Achin Vanaik

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UNCLOS’s “Law of the Sea” at the heart of the UN Security Council consensus, China by Karanpatil Link: https://indianewsrepublic.com/uncloss-law-of-the-sea-at-the-heart-of-the-un-security-council-consensus-china/411570

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