Trademark law is one of the most fascinating areas of intellectual property law, and there have been numerous advancements in this field of law in recent years. A trademark is an intellectual property that allows customers to recognise a specific brand, service, or product on the market. It protects the maker or owner of the goods from illegal product imitation, defends the interests of consumers, and helps to avoid unnecessary confusion. Traditional marks, such as logos, symbols, images, captions, signs, and names, are generally protected by trademarks. However, with today’s tough and ever-increasing competition among manufacturers of physical commodities, it’s more necessary than ever for them to stand out in the commercial market. As a result, brands have gotten more innovative and have embraced new non-traditional trademarks to identify their products in the marketplace.
Touch, fragrance, colour, shape, texture, sound, and taste are examples of non-conventional or non-traditional trademarks. In most cases, trademark protection is only granted to marks that can be graphically depicted; nonetheless, non-traditional trademarks are registered and protected because of their potential to create a certain level of recognition in the minds of consumers. The TRIPS agreement governs trademark registration and protection, and according to the agreement, a trademark must be able to perform its essential functions; nevertheless, it is not necessary for a trademark to be tangible, visually detectable, or graphically representable. As a result, the registration of non-traditional trademarks, particularly sound, has become quite prevalent in the United States and the European Union.
Non-conventional trademarks, on the other hand, are still a growing notion in India, and there has been much controversy and discussion about whether they may be deemed trademarks without the ability to be visually depicted. The purpose of this article is to shed light on the status of non-conventional trademark protection and registration in India, as well as to emphasise the intricacies and legalities involved in such protection by examining the situation of this idea across jurisdictions.
Challenges of non-conventional trademarks
The evolution of trademark registration methods for traditional subject matter has been gradual. Non-traditional trademarks such as fragrance marks, colour markings, sound marks, and form marks have yet to achieve traction. The applicant who intends to register non-conventional subject matter faces a number of hurdles. The registration process for registering for word and device trademarks under these criteria is simple. When a smell or sound trademark needs to be registered, there is a minor issue. Colour trademarks are not difficult to register if the applicant can show that the colour or combination of colours has acquired distinctiveness through secondary means after being used by the applicant for a long time and that the consumers have begun to associate the colour with the applicant’s goods. To register a smell mark, for example, we must graphically describe the mark and demonstrate that it is distinguishable from the product. However, representing a scent or a smell graphically by supplying a chemical formula or composition information is difficult because it is designed to reflect the product rather than the smell of that thing. Some scents mark descriptions, such as the tennis balls of a Dutch company that smell like freshly cut grass and darts that smell like bitter beer, could give evidence to substantiate distinctiveness and have been registered outside India. Another barrier to registering smell or taste marks and showing their distinctiveness is whether such markings work as a “functional element” of the linked products, as other traditional trademarks are. Touch/texture markings, for example, aid to give customers a feeling of the items’ reality by offering a reference to their existence. The touch/texture mark is a mark that customers recognise as a distinguishing aspect of the product’s trade dress/packaging that can be felt rather than merely seen with the naked eye. The leather texture of a Louis Vuitton bag is an example of such a mark.
Functionality issues
The registration of a trademark over a product’s functional feature is severely prohibited under trademark law. The functional aspect of the mark refers to those aspects of the mark that are derived from the nature of the good or from any fundamental element existing in the good or service. The bench in Noll v. O.M. Scott & Sons Co. found that the blue hue of fertilisers is primarily due to the presence of nitrogen in them. As a result, the blue hue represents a functional component of the fertiliser that has evolved as a result of the nitrogen content. Hence, no protection can be sought on the blue colour of the fertilizer which has been evolved because of the presence of nitrogen in it.
The Kellogg Co. case is also known as the “foundation of the functionality doctrine,” in which the court held that product designs that are intrinsic to functionality cannot be protected under trademark law because granting protection to a product’s functional characteristics would obstruct market competition. As a result of the foregoing rationale, the court denied trademark protection to the biscuit form on the grounds that it was utilitarian in nature.
As a result, we can see from the examples above that trademark protection cannot be provided to a functional aspect of a brand, even if it has gained uniqueness, in order to encourage competition and limit monopoly in the market. As a result, the functionality doctrine serves as a fair and justifiable restriction on trademark protection for a mark’s functional attributes in order to foster market competition.
Graphical representation
The graphical representation of a mark requirement specifies that a mark must be capable of being graphically depicted in order to be protected. The graphical depiction of a marking requirement is significant because it gives a clear, exact, and particular reference to what the mark is. The graphical representation is also necessary for defining and identifying the trademark and its scope.
Though Article 15 of the TRIPS agreement does not dictate visual perceptibility standards for trademarks, it does leave it to the discretion of member nations to add or not include visual perceptibility criteria in their domestic trademark legislation. Using their discretionary powers, the majority of nations have made the graphical representation of a mark a necessary criterion for trademark registration under their trademark legislation. As a result, in order to get trademark protection in such nations, the trademark must also meet the graphical representation of mark standards.
The Indian Trademark Act, 1999 contains the terms “capable of being depicted graphically” in its definition of a trademark under Section 2(1)(zb), which indicates that the mark shall be able to be rendered on paper and published in the trademark’s official journal.
The Court examined the problem of graphical representation in relation to the registration sound mark in Shield mark v. Kist. The Court in this instance recognised that even though it is not “immediately clear,” the pictorial representation is nevertheless understandable. The Court relied on the Sieckmann criteria of simple, clear, exact, and more understandable portrayal in this case.
Distinctiveness
The uniqueness requirement is one of the most significant factors for trademark registration. Only if a mark is unique and capable of distinguishing one proprietor’s goods or services from those of others is it registrable under the trademark regime. A mark’s distinctiveness, on the other hand, might be either inherent or acquired distinctiveness.
The uniqueness of a mark is often assessed in relation to the good or service to which it is associated, rather than in general. It is observed in this case while taking into account the context in which the mark is now in use or is planned to be used in relation to the linked item or service. The mark must be significant and distinctive to an ordinary consumer in the relevant market in order to be protected. The registration of the trademark will be based on the brand’s distinctive character.
The TRIPS agreement allows member countries to use the criterion of inherent distinction, acquired distinctiveness, or both in their domestic legislation at their discretion. Inherent uniqueness refers to marks that are unique in and of themselves, whereas acquired distinctiveness, also known as acquired secondary meaning, is produced by usage, promotion, or advertising. The mark will only be considered distinctive if a proof is shown demonstrating it was unique in relation to the applicant’s products or services in commerce. One of the most often used practises for acquiring trademark protection for marks that are not ordinarily subject to acquired distinctiveness criteria, such as non-conventional marks, is to use acquired distinctiveness standards. The criterion for determining the distinctiveness of a non-conventional mark is the same as for determining the distinctiveness of a conventional mark. In the case of non-conventional marks, the trademark office should proceed with caution when determining the distinctiveness of the mark because there are a number of non-conventional marks that, while not inherently distinctive, have acquired distinctiveness or secondary meaning through widespread recognition, either through use or the context in which they are used, e.g. the smell of grass, which is not inherently distinctive but may have acquired distinctiveness through widespread recognition, either through use or the context in which it is used. The issue should be handled with a practical flavour when those markings are not practically different, such as in situations of colour marks where, while according to colour codes, certain marks are distinctive, they are actually so similar that they lack distinctiveness. Such marks should not be protected or, at the very least, should be required to prove uniqueness. The uniqueness must be demonstrated in practice, not in theory, in connection to the item or service. In addition, when it comes to the meaning, it’s important to pay attention to which mark is being utilised.
Conclusion
In India, the need for graphical representation is combined with additional criteria that must be completed before a trademark may be registered. Trademarks that are not “capable of identifying” one person’s goods or services from those of another are lacking in unique character. Such marks without distinguishing features can only be registered if evidence can be produced to show that they have developed a distinctive character as a consequence of their usage.
If any of these trademarks are descriptive in nature, they must acquire/attain a secondary unique meaning to indicate that the goods or services for which they are used are associated with a certain brand or the owner. As a consequence of its continuous and protracted usage among the general public, a non-traditional trademark acquires uniqueness and is known, and consumers link such non-traditional trademarks with its brand or the owner, such trademarks are registrable under the Indian Trademark Law.
The brand owner must submit evidence of continuous and prolonged use, as well as other documents demonstrating that the money spent on non-traditional trademarks’ marketing and advertising was aimed at raising awareness among the general public/consumers in order to establish a link between such trademarks and the brand/owner, which will serve as an indicator of the brand/owner. If a non-traditional trademark is unique and non-functional, it is protected as a trademark. Non-traditional trademarks must appeal to a new set of customers who are more emotionally invested in the brand’s vibe. It would assist a consumer with poor recollection in identifying any product that they would normally be unable to distinguish. The grant of a non-conventional trademark would encourage other businesses to come up with new and imaginative methods to brand and sell their products.
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This article is written by Saurav Narayan and Oishika Banerji. This article provides a detailed analysis of the Forest Rights Act, 2006.The article has been edited by Smriti Katiyar (Associate, LawSikho).
The Forest Rights Act (FRA) of 2006 protects the rights of forest-dwelling tribal groups and other traditional forest dwellers to forest resources, which these communities rely on for a range of purposes, including subsistence, housing, and other socio-cultural requirements. Forest management policies in both colonial and post-colonial India, including Acts, Rules, and Forest Policies of Participatory Forest Management policies, did not recognise the STs’ symbiotic relationship with the forests, reflect on their reliance on the forest as well as their traditional wisdom regarding forest conservation, until the enactment of this Act.
The Act covers individual rights such as self-cultivation and habitat, as well as community rights such as grazing, fishing, and access to water bodies in forests, habitat rights for PVTGs, traditional seasonal resource access for Nomadic and Pastoral communities, biodiversity, community right to intellectual property and traditional knowledge, recognition of traditional customary rights, and the right to protect, regenerate, conserve, or manage natural resources. It also grants rights to the distribution of forest areas for development activities in order to meet the community’s basic infrastructure needs.
The Act also places a responsibility on the Gram Sabha and right holders to conserve and protect biodiversity, wildlife, forests, adjoining catchment areas, water sources, and other ecologically sensitive areas, as well as to stop any destructive practises that harm these resources or the tribals’ cultural and natural heritage. Under the Act, the Gram Sabha is a highly empowered body that allows the indigenous community to have a decisive say in the development of local policies and initiatives that affect them.
Why is this law required
The British diverted the nation’s enormous forest wealth to fulfil their economic demands during the colonial era. While legislation such as the Indian Forest Act of 1927 provided for the settlement of rights, they were rarely implemented. As a result, tribal and forest-dwellers, who had previously lived in harmony with forests, began to live in tenurial insecurity instead; a scenario that persisted even after independence as they were marginalised. The National Forest Policy of 1988 recognised the symbiotic link between forests and forest-dwelling inhabitants. The strategy emphasised the need for including tribal people in forest conservation, regeneration, and development. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006 was designed to safeguard marginalised persons and strike a balance between their right to the environment and their right to life and livelihood.
Need for Forest Rights Act, 2006 (extra information, topic there in published article)
To address the poor living conditions of many tribal families living in forests as a result of non-recognition and vesting of pre-existing rights, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, was enacted to recognize and vest forest rights and occupation of forest land in forest-dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forested areas for many years.
This Act not only recognizes the rights to hold and live in forest land under individual or common occupation for habitation or self-cultivation for livelihood, but also grants several other rights to ensure their control over forest resources, including the right of ownership, access to the collection, use, and dispose of minor forest produce, community rights such as nistar, habitat rights for primitive tribal groups and pre-agricultural communities; and rights for primitive tribal groups and pre-agricultural communities.
On the advice of Gram Sabhas, the Act also allows for the diversion of forest areas for government-managed public utility facilities like schools, dispensaries, fair pricing shops, electricity and telephone lines, water tanks, and so on. In addition, the Ministry of Tribal Affairs has developed numerous schemes for tribal people’s benefit, including those in the forest, such as “Mechanism for selling of Minor Forest Produce (MFP) through Minimum Support Price (MSP) and creation of Value Chain for MFP.” Infrastructure projects linked to basic services and facilities, such as approach roads, healthcare, primary education, minor irrigation, rainwater harvesting, drinking water, sanitation, community halls, and so on, are funded through the Special Central Assistance to Tribal Sub Plan, for development of forest villages.
An overview of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
The forest right connected to the conversion of forest villages into revenue villages is adjudicated by the Gram Sabha, Sub-Divisional Level Committee, and District Level Committee as per the provisions of the Act and the rules adopted thereunder, much like any other forest right stated in the Act. The Ministry of Tribal Affairs published recommendations on November 8, 2013, urging all state/UT governments to convert all such former forest villages, un-recorded settlements, and historic habitations into revenue villages as soon as possible. The conversion would incorporate the village’s full land use, including land required for present or future community uses such as schools, health facilities, public spaces, and so on.
Section 3: Rights available under the Forest Act, 2006
The rights of settlement and conversion of all forest villages, old habitations, un-surveyed villages, and other villages in the forest, whether recorded, notified, or not, into revenue villages have been recognised as one of the forest rights of forest-dwelling Scheduled Tribes and other traditional forest dwellers on all forest lands under Section 3(1)(h) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
Recognition, restoration and vesting of forest rights and related matters
Chapter III of the Forest Rights Act, 2006 talks about the ambit of people covered under the scope of rights recognized under the 2006 Act. Section 4 of the Act states that the Central Government recognizes and vests forest rights in:
The forest-dwelling Scheduled Tribes in States or areas in States where they are declared as Scheduled Tribes in respect of all forest rights mentioned in Section 3.
The other traditional forest dwellers in respect of all forest rights are mentioned in Section 3.
Further, Clause 2 of the Section 3 states that no forest rights holder shall be relocated or have their rights in any way affected for the purpose of establishing inviolate areas for wildlife conservation. However, the forest rights recognized under this Act in critical wildlife habitats of national parks and sanctuaries may later be modified or resettled. The conditions that need to be abided by in this regard have been provided hereunder:
All the areas under consideration have undergone the procedure for recognition and vesting of rights described in Section 6.
The state government’s concerned authorities have determined, in the course of their duties under the Wildlife (Protection) Act of 1972, that the actions or effects of the presence of rights holders on wild animals are sufficient to endanger the survival of the aforementioned species and its habitat.
The state government has determined that there are no other viable possibilities, such as coexistence;
A resettlement or alternatives package that offers a stable way of life for the affected people and communities and satisfies their needs as specified in the applicable legislation and the Central Government’s policy has been prepared and presented.
The gram sabhas in the affected areas have given their written permission to the proposed resettlement and the package is a free and informed manner;
No relocation shall occur until the promised facilities and land allocation are finished at the resettlement site. The state government, the Central Government, or any other entity may not thereafter divert the essential wildlife habitats from which rights holders are thus transferred for purposes of wildlife conservation.
The Scheduled Tribes or tribal communities or other traditional forest dwellers shall be subject to the requirement that such Scheduled Tribes or tribal communities or other traditional forest dwellers had occupied forest land before the thirteenth day of December 2005, in order for such Scheduled Tribes or tribal communities or other traditional forest dwellers to be recognized and vesting of forest rights under this Act in relation to any state or Union Territory in respect of forest land and their habitat.
A right granted by sub-section (1) of Section 3 is heritable but not alienable or transferable. It must be registered jointly in the names of the married couple in the case of a household headed by two people. And in the case of a household headed by one person, it must be registered in the name of the single head. If there is no direct heir, the heritable right will pass to the next-of-kin.
Clause 7 of Section 4 provides that except as otherwise provided in this Act, the forest rights shall be granted free from all encumbrances and procedural requirements, including clearance under the Forest (Conservation) Act of 1980, the requirement to pay the ‘net present value,’ and ‘compensatory afforestation’ for the diversion of forest land.
Clause 8 clarifies that the Scheduled Tribes and other traditional forest dwellers who can demonstrate that they were forced to move out from their homes and places of cultivation due to state development interventions and where the land has not been used for the purpose for which it was acquired within five years of the said acquisition shall have the right to land under the recognition and vesting provisions of this Act.
Section 5 of the Act states that the holders of any forest right, gram sabha and village level institutions in areas where there are holders of any forest right under this Act are empowered to have the following duties:
Safeguard the forest, wildlife, and biodiversity.
Guaranty adequate protection for adjacent catchments, water supplies, and other ecologically vulnerable areas.
Guarantee that detrimental actions affecting their cultural and ecological heritage are avoided in the habitat of Scheduled Tribes and other traditional forest inhabitants.
Make sure that the gram sabha’s decisions to control access to community forest resources and to halt any activity that has a negative impact on wild animals, the forest, or biodiversity are followed.
Authorities involved in vesting rights under the Forest Rights Act, 2006
Chapter IV of the Forest Rights Act, 2006 lays down the authorities and the procedure involved in vesting rights under the aforementioned legislation. Section 6 lays down the list of authorities and their related procedure which have been listed hereunder:
Within its jurisdiction, the gram sabha has the ability to begin the process of deciding the kind and extent of individual or communal forest rights, or both, that may be granted to forest living Scheduled Tribes and other traditional forest inhabitants. Receiving claims, consolidating and verifying them, and preparing a map delineating the area of each recommended claim in such a manner as may be prescribed for the exercise of such rights shall be done, and the gram sabha shall then pass a resolution to that effect, and a copy of the same shall be forwarded to the Sub-Divisional Level Committee.
The state government shall appoint a Sub-Divisional Level Committee to evaluate the gram sabha’s resolution, prepare a record of forest rights, and transmit it to the District Level Committee for a final determination.
Any person who is aggrieved by the Sub-Divisional Level Committee’s decision may file a petition with the District Level Committee within sixty days of the Sub-Divisional Level Committee’s decision, and the District Level Committee will consider and decide the petition.
The state government will appoint a District Level Committee to review and ultimately approve the Sub-Divisional Level Committee’s forest rights record. The District Level Committee’s judgment on the record of forest rights is to be considered final and binding.
The state government shall establish a State Level Monitoring Committee to oversee the process of forest rights recognition and vesting, as well as to submit any returns or reports requested by the nodal agency.
The Sub-Divisional Level Committee, District Level Committee, and State Level Monitoring Committee shall be composed of officers from the State Government’s Department of Revenue, Forest, and Tribal Affairs, as well as three members of the Panchayati Raj Institutions at the appropriate level, appointed by the respective Panchayati Raj Institutions, two of whom shall be Scheduled Tribe members and at least one of whom shall be a woman, as may be prescribed.
The Sub-Divisional Level Committee, the District Level Committee, and the State Level Monitoring Committee shall have such composition and functions as may be defined, as well as the procedure to be followed by them in carrying out their functions.
Format for claiming rights under the Forest Rights Act, 2006
There are different formats by means of which rights that are available under Chapter II of the Forest Act, 2006 can be claimed. In order to claim the statutory rights, formats need to be abided by. The same has been laid down hereunder.
Claim form for rights to forest land (Rule 11(1)(a) of the Forest Rights Amendment Rules, 2012)
Name of the claimant(s)
Name of the spouse
Name of father/ mother
Address
Village
Gram Panchayat
Tehsil/ Taluka
District:
(a) Scheduled Tribe: Yes/ No (Attach an authenticated copy of Certificate)
(b) Other Traditional Forest Dweller: Yes/ No (If a spouse is a Scheduled Tribe (attach an authenticated copy of certificate)
Name of other members in the family with age: (including children and adult dependents)
Signature/ Thumb Impression of the Claimant(s):
Claim form for community rights (Rule 11(1) (a) and (4) of the Amendment Rules, 2012)
Name of the claimant(s): FDST community: Yes/ No OTFD community: Yes/ No
Village:
Gram Panchayat:
Tehsil/ Taluka:
District:
Signature/ Thumb Impression of the Claimant (s):
Claim form for rights to community forest resource (Section 3(1) (i) of Act, 2006 and Rules 11(1) and 4(a) of Amendment Rules, 2012)
Village/Gram Sabha:
Gram Panchayat:
Tehsil / Taluka:
District:
Name(s) of members of the gram sabha [Attach as a separate sheet, with the status of Scheduled Tribes / Other Traditional Forest Dwellers indicated next to each member].
Presence of few Scheduled Tribes / Other Traditional forest Dwellers is sufficient to make the claim.
We, the undersigned residents of this Gram Sabha hereby resolve that the area detailed below and in the attached map comprises our Community Forest Resource over which we are claiming recognition of our forest rights under Section 3(1)(i).
(Attach a map of the community forest resource, showing location, landmarks within the traditional or customary boundaries of the village or seasonal use of landscape in the case of pastoral communities to which the community had traditional access and which they have been traditionally protecting, regenerating, conserving and managing for sustainable use. Please note that this need not correspond to existing legal boundaries.)
Khasra / Compartment No.(s), if any and if known:
Bordering Villages:
(This may also include information regarding sharing of resources and responsibilities with any other villages.)
List of Evidence in Support (Please see Rule 13)
Signature / Thumb impression of the Claimant(s):
Supreme Court’s view in Wildlife First v. Ministry of Forest (2019)
The Supreme Court ordered the eviction of lakhs of Scheduled Tribes (STs) and Other Traditional Forest Residents (OTFDs) across 16 States on February 13 after the Forest Rights Act, 2006 rejected their claim to be forest dwellers. The Chief Secretaries of many of these states were instructed to evict people whose petitions were ultimately dismissed by a bench of Justices Arun Mishra, Navin Sinha, and Indira Banerjee. According to a court order, the eviction must take place by July 24, 2019.
The Order from February 13 is supported by affidavits that the states submitted. However, it is unclear from the affidavits if the requirements of the law were followed before the claims were denied. The Centre contended that the rejection of claims was especially strong in states where there was a high tribal population and left-wing extremism. The states typically denied the forest land claims made by these tribes and forest inhabitants. They did not know the proper procedure for making claims because they are underprivileged, illiterate, and live in rural places. The gram sabhas, which are in charge of verifying their claims, lack knowledge of how to handle them. These communities were not even informed of the rejection orders.
The court’s order was stayed on February 28 but warned that “the mighty and the undeserving” who had encroached on forest land would not be spared. It has made the decision to investigate whether the gram sabhas and the states complied with the Forest Rights Act’s requirements for due process before rejecting the applications or not.
Offences and penalties recognized under the Forest Rights Act, 2006
Any authority or Committee, or any officer or member of such authority or Committee, who violates any provision of this Act or any rule made thereunder relating to the recognition of forest rights, shall be deemed guilty of an offence under this Act and subject to prosecution and a fine of up to one thousand rupees.
Any authority or Committee, or any officer or member of such authority or Committee, who violates any provision of this Act or any regulation established thereunder relating to the acknowledgment of forest rights, is guilty of an offence under this Act and may be prosecuted and fined up to one thousand rupees.
Protection of action taken in good faith under the Forest Rights Act, 2006
Section 10 of the Forest Rights Act, 2006 lays down provisions for the protection of action taken in good faith. The same has been listed hereunder:
Any official or another employee of the Central Government or the state government shall not be subject to any litigation, prosecution, or other legal action for anything done or intended to be done by or according to this Act in good faith.
Nothing done or intended to be done in good faith under this Act shall give rise to a claim or other legal action against the Central Government, the state government, or any of their officers or other employees for any harm caused or likely to be caused.
No authority mentioned in Chapter IV, including its Chairperson, members, member-secretary, officers, and other staff, shall be subject to a lawsuit or other legal action for anything done or intended to be done in good faith in accordance with this Act.
Central Government’s power to make rules under the Forest Rights Act, 2006
Section 14 of the Forest Rights Act, 2006 lays down the power vested on the Central Government to make rules for effective implementation of the provisions of the legislation, which are provided hereunder:
Procedural details for the implementation of the procedure are specified in Section 6.
The method of submitting a petition to the Sub-Divisional Committee under subsection (2) of Section 6, as well as the process for accepting claims, combining and confirming them, and creating a map showing the area of each approved claim for the exercise of forest rights.
The rank of officers who will be appointed to the Sub-Divisional Level Committee, District Level Committee, and State Level Monitoring Committee under paragraph (8) of Section 6 from the state government’s departments of Revenue, Forest, and Tribal Affairs.
The make-up, duties, and method by which the Sub-Divisional Level Committee, District Level Committee, and State Level Monitoring Committee are to carry out their responsibilities under Section 6 (9).
Any other matter which is required to be, or maybe, prescribed.
Forest Rights Act (FRA) of 2006 under the Jammu and Kashmir (J&K) administration
Many populations in Jammu and Kashmir, including the Gujjars, Bakarwals, Nengroo, and others, are native forest dwellers. For many years, their way of life had remained mostly unaltered. However, since October 31, 2019, when the Union Government expanded the Forest Rights Act, 2006 to J&K, a progressive piece of legislation that guarantees the land tenure, food security, and livelihoods of traditional forest dwellers, the majority of communities, like that of the Nengroos, have actually been treated more harshly than they ever had been before.
Mum Nengroo, a member of the Nengroo family, and his unwell wife are concerned that they won’t be given the kind of burial that the J&K communities who live in the forests deem appropriate when they pass away. The former, outraged by this assault on his community’s way of life, claims that the forest officials have completely fenced off their entire habitation. Mum Nengroo hence questions the authorities as to why they haven’t given them land for a respectable graveyard, which is indeed their duty to give the forest-dwellers.
The 2006 Act recognizes the rights of tribal groups and other traditional forest dwellers (OTFDs) that live in forests to the forest resources on which they rely for a variety of needs, including residence, a means of subsistence, and other socio-cultural requirements. This includes the right to land for cemeteries, temples, schools, community centers, buildings for panchayats (village self-governing organisations), clinics, and other structures. The Act grants certain individual rights, such as the ability to self-cultivate, live in a place, graze animals, go fishing, and have access to water sources in forested areas. Intellectual property, traditional knowledge, and other rights are examples of community rights in general.
Thus, the FRA gives forest dwellers the authority to access and utilise forest resources in the manner to which they are customarily accustomed, as well as to manage, conserve, and safeguard forests and themselves against forcible evictions. The Act also includes provisions for communities of forest dwellers to have access to infrastructure, food, health, and other essential development services. Hence, the actions of the authorities are immensely grave by nature.
However, the citizens of Nengroo Basti, which is located in the Charar Sharief Tehsil of central Kashmir’s Budgam district, had rejoiced, along with many other communities of forest-dwelling people, in January 2021 when a public outcry to implement the 2006 Act in J&K ensured that the legislation was finally put into effect.
The expansion of the 2006 Act to J&K has not only failed to bring the promised benefits to the nomadic groups, but has also made their lives more difficult because the employees of the Union Territory’s Forest Department seem to believe that the law undermines their authority.
The Union Territory’s vast woodland regions have been tightly cordoned off by the forest department over the past few years. People who live in villages close to forests claim that the forest department is fencing off state-owned territory, including grazing land (khahcharai). Six kilometres from Nengroo Basti, in the village of Kanidajan, forest officials cut down 8,000 apple trees that they said were cultivated on forest property. Several domestic and foreign media outlets, including the BBC, covered this story.
Forest Rights Act (FRA) of 2006 under Odisha’s administration
The situation is entirely different for the people who live in the forests of Odisha, while J&K’s forest officials appear to be having difficulty comprehending the 2006 Act. Twelve villages in the Ranpur block of the Nayagarh district of Odisha have obtained roughly 14 community forest right titles from the government. These communities’ inhabitants are not considered to be members of any scheduled tribe. The Act instead classifies them as OTFD.
The majority of states have prioritized giving their scheduled tribes the advantages of the Act throughout the legislation’s implementation, leaving the OTFDs out in the cold. Therefore, it was a momentous event, celebrated with a ceremony on November 22, when Odisha granted around 24 villages with community forest rights.
The 24 villages received community rights that included a joint title for a group of villages to gather and use household items like firewood both inside and outside the customary confines of the nearby forests. The rights to gather, prepare, use, and sell small forest products including bamboo, kendu leaves, tubers, and so on have now been granted to the locals. Additionally, they are allowed to store, transport, and add value to the produce. Along with fishing and grazing privileges, the 24 settlements now have access to the water sources within the forests. The Indian Forest Act of 1927 has previously resulted in the imprisonment of numerous citizens of these communities for trespassing on forest land which was now welcoming the 2006 legislation’s pros.
None of the 24 village residents want to use the privileges that were just recently given to them. Under the leadership of Maa Maninag Jangal Suraksha Parishad (MMJSP), a federation of 132 community-based forest protection groups from 132 villages in the area, the residents of the Ranpur forest area in Nayagarh district have been working for the conservation and protection of their forests and forest resources, including wildlife, for the past 24 years.
The secretary of the MMJSP, Arkito Sahu, who is 73 years old, has known for a long time that India’s forests need to be protected. Instead, he had encouraged the 132 communities in the Nayagarh district to cooperate in protecting the trees they rely on.
V. Giri Rao, the director of the Bhubaneswar-based NGO Vasundhara, made sure that the outstanding work carried out by the MMJSP was documented and that women were involved in the forest committees in order to provide them with institutional support. Vasundhara and the MMJSP have been working harder since the Act was passed in 2006 to make sure that the forest dwellers of the Ranpur block receive all the benefits of this legislation.
After getting to know the scenarios in two different topography, it is evident that the question as to what Odisha did was that J&K couldn’t implement the provisions of the progressive piece of legislation. Let us have a look concerning the same, hereunder.
Odisha management towards Forest Rights Act, 2006 vis-a-vis Jammu and Kashmir’s way
The answer to the question as to how Odisha managed to use the 2006 Act so effectively while the Union Territory of Jammu and Kashmir does what seems to be the very opposite, lies in the agency that oversees the implementation of the legislation in J&K vis-a-vis the one in Odisha.
The Act’s implementation is supervised at the federal level by the Ministry of Tribal Affairs. Several states have designated their Tribal Affairs Departments as the central organisations for carrying out the 2006 Act. But in J&K, the Union Government’s administration has designated the forest department as the nodal organization for carrying out this law.
The J&K Forest Department’s actions since the 2006 Act was extended to the UT have been so at odds with the goals of the legislation that it is almost comical. While J&K’s Forest Department denies them these rights, the Act of 2006 recognizes the rights of tribal communities that live in the forest and other traditional forest dwellers to forest resources.
Manoj Sinha, the Lt. Governor of J&K, stated that the Act of 2006 has given the people of J&K new hope in his speech for the show ‘Agenda,’ which was hosted by the India Today media group. But the situation on the ground at this time tells a story of no hope.
Aim of the Forest Right Act
To make up for the past injustices that have been committed against the forest-dwelling communities.
To safeguard the forest-dwelling Scheduled Tribes and other traditional forest dwellers’ land tenure, livelihood, and food security.
To enhance the forest conservation regime by assigning obligations and authorities to Forest Rights holders for sustainable use, biodiversity protection, and ecological balance.
Forest rights of forest-dwelling scheduled tribes and other traditional forest dwellers
Right to hold and live in forest land for habitation or self-cultivation for a living by a member or members of a group. For example, Scheduled Tribes or other people who live in the forests.
Community rights, such as nistar, by any name, including those employed in the former Princely States, Zamindari, or similar intermediate regimes.
Right of ownership, access to acquire, use, and dispose of minor forest produce collected inside or beyond village limits.
Other communal rights of use or entitlements include fish and other aquatic resources, grazing (both settled and transhumant), and nomadic or pastoralist populations’ customary seasonal resource usage.
For primitive tribal groups and preagricultural cultures, rights include community tenures of habitat and dwelling.
Rights to convert pattas, leases, or grants on forest property provided by any local body or state government to titles.
All forest villages, old settlements, unsurveyed villages, and other villages in forests, whether documented, notified, or not, have the right of settlement in revenue villages.
Any community forest resource that has been historically protected and conserved for sustainable use has the right to be protected, regenerated, conserved, or managed.
Rights recognised by any State legislation or by the statutes of an Autonomous District Council or Autonomous Regional Council, or rights recognised as tribal rights by any traditional or customary law of the affected tribes of any State.
Community right to intellectual property and traditional knowledge connected to biodiversity and cultural variety, as well as access to biodiversity.
It allows FDSTs (Forest Dwelling Scheduled Tribes) and OTFDs (Other Traditional Forest Dwellers) the right to possess land cultivated by tribals or forest dwellers up to 4 hectares.
No additional lands will be awarded, only land that is currently being farmed by the concerned family.
In cases where Scheduled Tribes or other traditional forest dwellers have been illegally evicted or displaced from forest land of any description without receiving their legal entitlement to rehabilitation prior to December 13, 2005, they have the right to in situ rehabilitation, including alternative land.
Who is eligible to claim these rights?
Scheduled Tribes members or communities who predominantly reside in and rely on forests or forest areas for bona fide livelihood needs. It can also be claimed by any member or community that has lived on the forest land for at least three generations (75 years) prior to December 13, 2005, for bona fide livelihood needs. The Gram Sabha has the power to begin the process of deciding the type and scope of Individual Forest Rights (IFR), Community Forest Rights (CFR), or both, that may be granted to FDST and OTFD.
Process
First, the gram sabha (the entire village assembly, not just the gram panchayat) makes a suggestion – for example, who has been cultivating land for how long, what minor forest produce is gathered, and so on. The gram sabha fulfils this purpose since it is a democratic and transparent public body in which everyone participates.
The gram sabha’s suggestion passes through two steps of taluka and district screening committees.
The ultimate decision is made by the district level committee (see section 6(6)). The Committees are made up of six people: three government officials and three elected officials.
Anyone who feels a claim is false can appeal to the Committees at both the taluka and district levels, and if they show their case, the right is refused (sections 6(2) and 6(4)).
Land that is once recognised under this act cannot be sold or transferred.
Why is this act full of challenges?
The implementation of the act remains the most difficult task, as environmental activities are not always in compliance with the law, unlawful encroachments have occurred, and claims have been wrongly denied because tribals do not constitute a significant block of voters in most states. Governments find it convenient to violate this act or ignore it entirely in favour of monetary rewards.
The forest bureaucracy, both at the central and state levels, as well as huge corporations, have engaged in purposeful destruction. The forest bureaucracy is concerned that it will lose its vast control over land and people, while corporations are concerned that they will lose their low-cost access to precious natural resources. Apart from that, the Gram Sabha creates rough maps of community and individual claims, but it typically lacks technical know-how and is educationally incompetent. For illiterate tribals, the intensive process of documenting groups’ claims under the Act is both tedious and terrifying.
Conclusion
Even though the implementation of the act remains the most difficult task, the importance of this act cannot be neglected. At the local level, large-scale public awareness and information efforts are necessary, informing both tribe and lower-level officials.
To make it easier for Gram Sabha to identify and file claims for individual and community rights, the appropriate maps and records should be made available to the Forest Rights Committee and claimants. The statute specifies no time restriction for resolving claims, providing clarity on the time limit for settling claims. Both authorities and recipients are generally unaware of this truth in most regions. The government should take a more active role in pressuring states to comply with legislation that has the potential to affect millions of people’s lives.
Frequently Asked Questions (FAQs)
What is the complete name of the Forest Rights Act, 2006?
The full name of the Forest Rights Act, 2006 is Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
What are the other names of Forest Act 2006?
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, can also be called the Forest Rights Act, the Tribal Rights Act, the Tribal Bill, and the Tribal Land Act.
Who is eligible for the Forest Rights Act, 2006?
To qualify as OTFD and be eligible for recognition of rights under FRA, two conditions need to be fulfilled:
Primarily resided in forest or forest land for three generations (75 years) prior to 13-12-2005, and
Depend on the forest or forest land for bonafide livelihood needs.
How does the Forest Rights Act, 2006 help tribals and forest dwellers?
The Forest Act of 2006 gives forest dwellers the authority to access and use forest resources as they have in the past, to protect, conserve, and manage forests, and shield them from forcible evictions.
What are the reasons for enacting the Forest Rights Act 2006?
It aims to right historical wrongs committed against the OTFD and FDST, who are crucial to the sustainability and survival of the forest ecosystem. It grants FDST and OTFD ownership rights over land used for farming by tribal people or forest residents, up to a maximum of 4 hectares.
What are the provisions in the Forest Rights Act to protect people’s rights?
The 2006 Act’s Section 3(1)(i) contains provisions for the right and power to conserve and safeguard community woodlands. Different communities that live in forests are granted rights under Section 5 of the Act to protect their habitats, wildlife, etc.
What is FRA clearance?
According to Down to Earth (DTE), many mining projects received approvals without resolving the FRA rights of the project’s impacted individuals. As a result, tribal peoples and other forest inhabitants had their potential forest land rights under the FRA rejected as a result of the forest clearances for the mines.
This article has been written by Md. Omar Faruque Munshi, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. It has been edited by Aatima Bhatia (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).
Table of Contents
Introduction
Companies decide to operate multinational business operations upon considering different factors like production cost, market opportunity, extension of business through licensing, among others.
Despite the calculation involved in each of these factors, unwary companies are likely to make mistakes if they fail to set appropriate strategies to protect the trademarks of their products. These trademarks require an analysis of all risk factors as they are deeply rooted in country-to-country legal variations.
It might happen that an MNC which has its trademark registered in its home country, in the course of doing business its trademark has been taken over by some other person registering an identical or similar trademark blocking its business or diluting its brand identity in that of another country it invested in or prospective countries of investment also. These are the events of trademark piracy or squatting done by the ill motivated persons (hereafter referred to “the trademark squatters”) attempting to execute their plot by the distorted use of law. This article will analyse the legal environment for trademark piracy of MNCs in China as it is one of the main choices of foreign investors’ investment, the recent administrative and judicial steps countering trademark piracy, and required strategy for MNCs.
Hazards of trademark piracy
Trademark piracy is occurs when a person (the trademark squatter) tends to establish the claim over the trademark of a foreign investor who has registered its trademark in respect of its goods or services in its home country but lacks registration in that other country where it has invested. Taking opportunity of this situation of foreign investor, the trademark squatters attempt to secure their improper gain by registering the identical or deceptively similar trademark with the motive of blocking the foreign investors in entering into the new market with their brand (e.g. Tesla Motor in 2013), or secure a bargain reselling the pirated trademark to the foreign registered brand owner (e.g.Apple in 2012, andUniqlo Trading Co. Ltd. case in 2018), or secure a business gain with marketing the product of trademark squatters using the goodwill of foreign brand (e.g.Michael Jordan vs Qiaodan Sportswear Co. in 2012, also see 8 years legal battle of Michael Jordan that ended in 2020). Often also the trademark pirates work as a part of trademark pirating syndicates. Besides blocking the foreign investor’s trade in the squatting country, the shrewd squatter may register the pirated trademark in other countries also in a premeditated way to block the business of the original brand owner in possible other countries of business expansion. The trademark squatting or piracy amounts to debilite brand identity, loss of goodwill, loss of revenue earning, entail costly legal battle, and many business hazards for MNCs.
The legal context of China for trademark piracy or squatting
The WTO Analytical Index of TRIPS Agreement – Article 51 (Jurisprudence) defined the conduct constituting trademark piracy as below:
“Pirated copyright goods” shall mean any goods which are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and which are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation [1].
The registration of trademark gives protection to the trademark owners giving right to prevent anyone from unauthorized using the identical or similar trademark for goods or services in the course of trade where such use would create a likelihood of confusion among the potential customers of the goods or services for which the mark is registered. But the operation of the trademark law is territorial meaning that the protection to the trademark is available only within the country in which it is registered. The only exception is the trademark having cross border reputation (termed as the well-known trademark) with relevant consuming public within the territory in which the protection claimed.
From the said territoriality principle, it entails that the MNCs who have their trademark registered in one country, also required to register their trademark in another country or countries also where they wish to establish their business connection. To secure this trans-border registration there are two ways— (i) individual country to country registration; and (ii) international registration under the Madrid Protocol. This matter is discussed later in this paper under the heading “trademark strategy for MNCs”.
Difficulty arises in availing the protection of trademark in the country where the law provides registration of the trademark following the principle of “first to filing the application basis” rather than “first to use basis”. Countries like China, Japan, France, Spain, Germany, Canada and many countries of EU provide for the trademark registration on “first to apply basis” whereas UK, India, Australia, USA, etc. provide for registration of trademarks on “first to use basis”. Legal recognition of Trademark rights to the first user of the mark defeats the registration by the subsequent user of the identical or similar deceptive mark in relation to the business of similar goods or services.
Since China is a country which provides registration on “first to filing application” basis, and does not recognize the “common law” prior user right of the trade mark, the risk arises for an MNC is that even if it has the evidence of a long track of using a trademark in relation to its goods or services, if it fails to file early the “application for trademark registration” in China, it may happen that some other person with the motive of blocking its business do registration of the identical or similar trademark taking advantage of the “first to file” principle, and secure its upper hand over the foreign investor’s market of the goods or services with this pirated trademark. Often the shrewd Trademark Squatters then also brings this pirated mark into the record of the Customs Authority as the owner of it so as to prevent the import or export with this mark by anyone else as would be treated as infringement of its trademark right under the law. Thus the MNC who is the original owner of the trademark registered in its home country, now is blocked in doing trade, export or import of its goods or services in or outside from China. The trademark squatter may further tend to block the business of the targeted MNC in expanding its business to other possible countries also securing the registration of the same in those other countries on the basis of its China registration. Certainly this is a very difficult position for the MNC which then has to pay a great cost for being unwary in setting its required trademark strategy explained in this article below.
Legal uncertainty of protecting trademarks of OEM goods in China
In this present globalized economy it is now increasing practice that companies having their trademark registered in their home country choose to manufacture their branded goods in another country considering the availability of raw materials, labour skill, machineries, technology, production cost, etc. The companies which manufacture products for the foreign brand holder under the manufacturing contract are called Original Equipment Manufacturing Company (OEM). China is well known for manufacturing the OEM goods. These OEM factories do not engage in the production of goods for the sale in the country of manufacture itself, but for export to the foreign brand owner who has engaged them in the production of goods with the foreign brand identity. Piracy of MNCs trademark by the trademark squatting syndicates in China in the course of manufacturing the OEM goods are mentionable. The great legal uncertainty in this area exists created by the judicial decisions which are discussed below.
In this case, a Mexican company TRUPERSA who had its trademarks “PRETUL” and “PRETUL & oval device” registered in Mexico and in some other countries also since 2003, employed an China OEM company named Zhejiang Pujiang Yahuan Locks Co. Ltd. (hereinafter referred to as “Yahuan”) to produce locks, keys bearing its trademark and use it in the packaging. Thereafter another individual registered the trademark “PRETUL & oval device” in China for the similar goods of the said Mexican Company and in 2010 assigned the trademark to Focker Security Products International Limited (hereinafter referred as “Focker”). In addition to such registration of the said trademark, Focker with a motive to ban the export and import of the product bearing this mark by anyone else recorded this mark with the China Customs Authority. The OEM Company Yahuan, upon manufacturing the goods when advanced to transport them to its foreign brand holder TRUPERSA, was subjected to the seizure by the Customs Authority as attempting to transport counterfeited products, and the authority then informed the Focker about this seizure. Focker thereafter instituted legal proceedings in the civil court against the Yahuan for the infringement of its trademark, sought for an order of injunction and compensation on the said infringement.
In the said proceeding, the Yahuan attempted to escape the infringement proceeding by filing a response contending that the products were manufactured authorized by TRUPERSA, a Mexican company, and were intended for export purpose only, without intention for domestic sale or distribution in China. As such no cause of confusion can arise among the relevant public in China about the goods of Focker, and therefore, no infringement occurred to the trademark in China as alleged by the plaintiff.
The legal issue before the court then centered on the point “whether the use of the trademark in relation to the goods for export purpose only, not for trade in China be held infringing a trademark in China?”
Following a legal battle in the court of first instance and then in the court of first appeal, the issue came before the Supreme People’s Court of China (SPC) which then held that the OEM goods that are manufactured for the export purpose only to the foreign brand owner, with no intention to trade in China, there could arise no confusion among the relevant consuming public in China about the product source as that of the Plaintiff, thus no infringement of a Trademark in China occurred as such.
Pretul case decision is commented by legal experts as the double edged-sword for trademark owners because it purports that the use of a trademark by the OEM which is identical with a China registered trademark, is not to be constituted as infringement. The legal effect then follows that the foreign brand owners are at risk of their trademark being pirated in the course of OEM manufacturing in China without any remedy since no trademark violation could occur in China in respect of OEM goods according to the theoretical proposition of this judgement as having no customer badge in China of the said foreign brand owner.
Honda Motor Co. Ltd. v. Chongqing Hengsheng Xintai Trading Co. Ltd. [2019] (Also known as Hondakit case) [3]
Subsequently the Pretul case decision, the SPC in the Hondakit case (2019) revised its earlier decision stating that real likelihood of confusion exists even if the OEM goods were manufactured for export purposes only to their foreign brand holder and not intended for their sale in China.
The short fact of the case is that the Honda Motor Company since 1988 was using the mark “HONDA” and its some other derivative marks in its various forms, and logos by registering in China for the business in motorcycles. Then, a Burmese company named “Meihua Company Limited” (hereinafter mentioned as “Meihua)” started manufacturing its motorcycles in China engaging an OEM factory labelling the trademark “HONDAKIT”, a trademark registered in Burma. In 2016 the Customs Authority of Kunming at the Yunnan province of China seized a batch of “HONDAKIT” products on the ground of infringement of HONDA mark registered in China. Following it the Honda Motor Company instituted a trademark infringement proceeding against the China OEM Factory of Meihua. The legal battle ultimately reached to the SPC wherein it though retained the base of the earlier PRETUL Case reasoning, revised the test of “real likelihood of confusion” among the China Consuming public, differently interpreted the scope of “real likelihood confusion” holding as below:
Firstly, in deciding the confusing effect of disputed mark among China public, the term “public” should be interpreted to include the relevant persons engaged with the export procedure, they are part of China people, thus the complained mark may be treated confusing the China people who came across the mark in the course of their service.
In the second place, in the context of the present development of e-commerce and travel, the public should also encompass “the China people” who come in contact with the relevant goods through online or in their travelling abroad. The OEM goods with the alleged conflicted trademark, although initially may be destined for export to overseas, in the subsequent course they are capable of being circulated back in China. Thus there exists a real likelihood of confusion among the China public who become acknowledged with a China registered mark and then see the use of such a conflicted trademark in the OEM goods.
The impact of this decision is that, though in the earlier PRETUL case decision there was at least the scope of exporting the OEM goods to the foreign brand holder who intended the production of his goods by employing the OEM factory in China, now after this latest HONDAKIT decision, the said scope became extinguished if someone gets registration of the identical mark in China and complains the infringement.
For the OEM goods, some countries of the world, like India, Australia, UK provide special protective provisions in their trademark law for the foreign investors who have invested for manufacturing their product. But no such special protective measures are given in the law of China [4].
Recent administrative and judicial steps countering the trademark piracy
Amendment to the Trademark Law of China
On the frequent instances of trademark squatting events in China, recently the administrative authority and courts have started different measures to prevent those activities. On 23 April 2019, the Standing Committee of the National People’s Congress passed decision on the amendment of 8 laws including the Trademark Law of China specially focusing measures to prevent bad faith registration of Trademarks [5]. The amended articles to the Trademark Law is said to take effect from 1 November 2019.
Article 4 of the 2019’s amended Trademark Law of China, provides that “an application for registration of a malicious trademark not for the purpose of use shall be rejected.”
The new Law further prohibits trademark agencies from representing clients if the agencies know or should know the trademarks to be filed for registration by such clients fall under the circumstances prescribed in article 4.
Article 7 provides that “when applying for registration and use of trademarks, the principle of good faith shall be observed.” There are several cases in which the China National Intellectual Property Administration (CNIPA) rejected bad faith applications for registration of the trademark. According to a report referring to the statistics of CNIPA published in 2020, in China during 2018-20 there were about 150,000 trademark applications rejected for bad faith filing in the Trademark Office’s examination process [6]. Also there are several judicial decisions in which the court granted order of injunction, compensation, and invalidation against bad faith trademark registration.
Very strong protection is given under article 13 in respect to trademarks which are well known. Article 13 provides that, the holder of a well-known trademark having recognition to the relevant public, may request the protection of it if it is a well-known trademark in accordance with the provisions of this law and if he believes that his rights have been infringed.
Further article 13 contains an exception to China “first to file” principle in respect of well-known trademark which is unregistered in China holding that where a trademark is applied for registration for the same or similar goods of a well-known trademark unregistered in China which is likely to create confusion, shall not be registered and are prohibited from being used.
Article 13 then gave enhanced protection in respect of well-known trademarks which are registered in China. Where a trademark besides being a well-known mark is also registered in China, it will enjoy protection for goods in the similar classes for which it is registered as well as enjoy protection for goods in cross classes also. Thus if someone applies for registration of a trademark for goods falling in the same or other classes it will not be registered if it is likely to create confusion with a well-known trademark registered in China.
Article 33 of the amended trademark law provides for filing the objection within 3 months of the announcement of preliminary validation in the trademark if it is found by anyone in violation of the provisions above mentioned. In addition, article 44 gives power to the trademark office to declare the registered trademark null and void if at any time subsequent to registration it is discovered the mark is registered with bad motive, or registered by deception or other improper means, and other units or individuals may request the trademark review board to declare the registered trademark invalid.
To refer to the recent judicial step against the bad faith registration of trademarks in China may be referred to a landmark decision by the China Supreme Court given in the Uniqlo Trading Co. Ltd. case (2018)”) [7]. In this case the China Supreme Court rejected the trademark infringement case brought by a trademark squatter itself against the company Uniqlo Trading Co. Ltd. which is a subsidiary of the Japanese UNIQLO-branded clothing retail store which uses the mark UL ULTRA LIGHT DOWN for its products. The China company Zhongwei (Plaintiff) filed 42 trademark infringement actions against Uniqlo in nineteen different courts, which resulted in a number of different decisions. The matter ultimately came up before the China Supreme Court which in rejecting the infringement proceeding brought against Uniqlo, held that the plaintiff Zhongwei abused the legal system in bringing such malicious litigations against Uniqlo. The court quoted the following fact of the Plaintiff to refer to its trademark squatting events that led it filing series of malicious prosecutions against the defendant:
Zhongwei filed more than 2,600 trademark applications
Zhongwei did not intend to use the marks in commerce
Zhongwei’s business model was to sell registered marks at a high price to third parties that genuinely use or intend to use the mark
Zhongwei brought 42 litigations against Uniqlo
By this decision, the China Supreme Court took the step to protect the trademarks of companies that have the real intention to register and use the marks in China.
On 6th January 21, in another case the Wyeth LLC Case 2021 case”, the Hangzhou Intermediate People’s Court ruled on a trademark infringement proceeding filed by theWyeth LLC (US Wyeth) against a China company the “Guangzhou Wyeth Baby Maternal and Infant Products Co., Ltd. (Guangzhou Wyeth)”. The Court held the mala fide in using the US Wyeth’s registered trademark in China by the Guangzhou Wyeth and awarded injunction against the defendant Guangzhou Wyeth for infringing the China registered trademark of the US Wyeth along with punitive damage 30.55 Million RMB ($4.7 million USD) for conducting unfair trading. The decision then on 26 April 2021 was also upheld by the Zhejiang High Court in the appeal filed by the defendant Guangzhou Wyeth company. The Zhejiang High Court commented that the defendant’s infringement lasted for a long time and made great profits, which met the “intentional” and “serious circumstances” that require punitive damages to be awarded, the Hangzhou Intermediate People’s Court was just in awarding the said punitive damage along with injunction. This trend in judicial decisions against malafide use of trademarks is hopeful to foreign companies investing in China.
CNIPA’s draft regulation on trademark applications
On 12 February 2019, CNIPA published a draft regulation titled “Some Provisions on Regulating the Application for Registration of Trademarks”inviting public comments before 14 March 2019. The draft regulation was intended to provide stringent provisions to combat the bad faith trademark registrations. In article 3 it defined the “abnormal trademark registration” requiring prevention as follows:
Imitating a trademark well known to the relevant public, and taking unfair use of the goodwill of others;
Preemptively applying for the registration of trademarks that have been used by others and have had certain influence, and improperly seizing the goodwill of others;
Preemptively applying for registration of a trademark identical with or similar to a prior right of others although he knows or should have known the existence of others’ prior rights;
Repeatedly applying for trademark registration with clear improper purpose;
Filing a large number of applications for trademark registration in a short time obviously exceeding the reasonable limit;
The application for trademark registration lacks the true intention to use, and the applicant does not have the actual need of obtaining the exclusive right to use the trademark on the concerned goods or services;
Other trademark application registration acts that violate the principle of good faith, infringe upon the lawful rights and interests of others or disrupt the market operation order;
To help others or for trademark agencies to act as agents for applying for registration of trademarks of the types mentioned in Items (1) to (7) of this Article.
Suggested strategy for MNCs to protect its trademark
Checklist for protecting trademark in China
Protection of your trademark in China can be made with the following checklists:
(i) Have you registered your trademark in China besides registration in your home country or other places where you wish to expand your business?
Did you take custom border protective measures in respect of your trademark to prevent export-import of the counterfeit product with your trademark?
(ii) Is your trademark in English or in some other language except the Chinese? Have you also provided a Chinese transliteration of it when registering in China?
(iii) If registered in China, did you take care of keeping records of using your mark in conducting business in China creating a group of China costuming people so as to avoid non use cancellation?
(iv) Is your business connection in China solely to manufacture the product of your brand engaging OEM factory there? Did you feel not to create any customer base in China for that reason? What consideration have you paid then to avoid non-use cancellation of your trademark?
(v) Did you set the plan to prevent dilution of your trademark in the “aftermarket sale market” of the spare parts of your product?
(vi) Did you set the measure for keeping continuous watch over the bad faith filing by someone for the registration of identical or similar deceptive mark so as to take timely legal steps against such registration?
The following discussion now explained the reason for the said check-list.
Why and how to follow the above checklist in the trademark protection strategy?
In countries like China that provide for registration of trademarks on the “first to file” basis, the foreign investors must plan early to register their trademarks in the country of investment even before establishing a business connection there though it has the registration in the home country. In absence of registering their trademarks, the trademark-squatting syndicates may tend to execute their motive to secure improper gain over the unregistered trademark owner by firstly creating block to the business of a targeted company in China with registering the identical or similar deceptive trademark which is unregistered by the MNCs, and also recording it with the Customs Authority as a measure to prevent cross-border transportation of the goods besides blocking their trade in internal market of China. After successfully doing that the trademark squatters are in a position to establish a costly bargain with the respective MNC. In China there is no common law right based on “prior use” of the mark and the legal remedy in the form of “passing off” of the goods or services on the claim of prior user of the mark against the infringer.
Though recently in China, as it is already pointed out above, the administrative and judicial authorities have started taking measures against trademark squatting and bad faith registration, the fact still remains that if an MNC does not register its trademark in China, unless its mark is well known, have the least hope to win against the trademark squatter establishing the bad faith in registering the identical or similar mark of its pre-existing business. To establish the bad faith, the respective MNC must prove the known status of its trademark among the China consuming public showing the advertisement data, sale revenue, and other business promotion of data over that of the claim of the trademark squatter, generally these will not be readily available. The shrewd squatters will execute their trademark squatting plot much before gathering those types of evidence by the MNC in doing their business with its unregistered trademark in China. Further, China being a country following the “first to file” principle in granting and protecting the trademark, precisely it will be reluctant to secure the rights of an unregistered trademark in China on the claim of prior user whatsoever. It will be much less strain-some for the MNCs and less costly than to involve in a litigation with the trademark squatters. In reference to such difficulty to fight against the trademark squatting, some commentators commented that “although the current Trademark Law includes methods to fight bad-faith trademarks, the need to challenge such marks through lengthy and expensive opposition and invalidation proceedings has made brand protection difficult in China, particularly for foreign entities” [8].
On this same token it is advisable, even if the MNC’s trademark is well-known, it should register its trademark in China. It is not only the case in China, but in other countries also which turn into the increasing focus of foreign investment pool for its manufacturing facilities, technology, market opportunity, investment environment, etc. generally some syndicates grow up who live on seeking avenues for unauthorized manipulation of the foreign brand. To combat them foreign investors must take due precautions based on the country to country legal systems and understanding the culture of such syndicates.
Also it is required that the MNCs when registering its trademark, if its trademark is a “word mark” written in the language other than Chinese, they should provide a Chinese transliteration of the mark when applying for registration before the China Trademark Office because there are huge instances in which the squatters do registration of the brand with its China transliteration bearing the same meaning and thus tend to secure the business gain over the goodwill of another brand. As an instance of this may be seenMichael Jordan vs Qiaodan Sportswear Co. in 2012, and the 8 years legal battle of Michael Jordan that ended in 2020 [9]. For further detail about the use of Chinese transliteration of the trademark may be seen the article by Yan Zhang and Austin Chang (2021) here [10].
How to Seek International Protection of trademarks?
There are two ways for seeking foreign protection of the trademark- (i) filing the trademark registration application in each country where the trademark owner wishes to expand its business; or (ii) file application under the Madrid Protocol System. The first mentioned procedure is costly, time consuming, and requires extra labor. Under the second mentioned Madrid Protocol system, a streamlined procedure for acquiring cross-border protection to one’s trademark is provided by filing a single international trademark application for other intended countries who are signatories to the Madrid Protocol. This system is based on the home registration of a trademark owner. A person first is to obtain the trademark registration within its own country. If it is a signatory country to the Madrid Protocol, the trade mark owner after obtaining the trademark registration in its home country, may within certain times file an international application directly to the WIPO or its home country’s Trademark Office for such submission complying with certain requirements and paying the required fees. It is then forwarded to the WIPO’s International Bureau, it examines the application and if it approves the mark, it is recorded in the international register and published in the “WIPO Gazette of International Marks”. WIPO then notifies the countries about the application in all the countries listed in the application. The relevant countries examine the application under its national law and registry system and confirm whether the trademark registration will be accepted or not. Usually this confirmation process about the registration by each individual country takes twelve to eighteen months. Madrid Protocol though provided the streamlined process of seeking international protection to trademark, one problem is that since this application is based on the home country registration, if the application or registration in the home county is cancelled or denied, then the international registration will also become invalid per se.
Special precaution for trademark in OEM goods
The MNC that invested to produce their goods engaging OEM in China, though their goods are not intended to sell in China, are greatly vulnerable to trademark piracy in the absence of early registration. Since their products are intended for manufacturing and exporting to the brand holder itself, the use of trademarks in relation to OEM goods will not be treated as “the use” for the purpose of trademark protection in China.Thus no actionable claim may accrue against the trademark squatters pirating the MNC’s brand registering the identical or similar deceptive mark in China. It will then be hard to establish the bad faith claim against the squatters in respect of use of their trademarks.
Moreover even if an MNC has got its trademark registered in China, their mark will remain vulnerable for non-use cancellation under the amended Trademark Law of China if not used in China for 3 consecutive years [11]. Moreover, under the Act, such non-use cancellation petition can be filed by any entity or individual with the Chinese Trademark Office. The law does not even require that the claimant should be an “interested person”. The legal impact that follows on it the claimant need not require to justify its any legal interest for bringing such non-use cancellation petition of the trademark. Thus the MNC in investing production of goods of their brand engaging China OEM, also need to do some business with their product in China, and preserve records of advertisement, sale, brand promotion activities, etc. as proof of use of the marks in China to avoid non-use cancellation risk.
Conclusion
Due to the territorial limitation on the operation of the trademark, the MNCs must consider strategy for brand protection in launching cross-border business operations. The two dominant principles on trademark claim, “the first to file” and “the first to use” basis, caused differing legal schemes country to country. In countries like China, that follow the “first to file principle” trademark registration and claim, the MNC’s trademark except its early registration therewith is at risk of being pirated. The common law trademark right based on “first to use” and the remedy “passing off” for the unregistered prior user against infringement have no application in China. Though it is hopeful that recently the administrative and judicial authority have adopted strong positions against squatting and bad faith trademark registration, as explained above, their efficacy is yet to be proved. Especially the trademark squatting events in the past along with the already grown up syndicates and culture, are still the tension. Concerns also remain about the method of lengthy and expensive opposition and invalidation proceedings against fighting bad-faith trademark registrations, the non-use cancellation risks of trademarks used in OEM goods manufactured in China.
2. Focker v Yahuan, (2014), Mintizi No. 38, (widely known as “PRETUL Case Decision”) Robert P. Merges and Seagull Haiyan Song, Transnational Intellectual Property Law: Text and Cases, (Edward Elgar Publishing, 2018)
4. For the trademark protection of OEM goods see in India section 56 read with section 34 of the Trade Marks Act, 1956; in Australia section 228 read with section 58A of the Australian Trademarks Act, 1995; in UK section 56 of the Trademarks Act, 1994 provides right to seek injunction to the brand owners qualified as well-known under the Paris Convention for the Protection of Industrial Property 1883 irrespective of whether or not that person carries on business, or has any goodwill, in the United Kingdom.
5. Ministry of the Justice of the People’s Republic of China, “The Decision of the Standing Committee of the National People’s Congress to Amend Eight Laws”, (adopted at the 10th session of the standing committee of the 13th national people’s congress on April 23, 2019), www.chinalaw.gov.cn/Department/content/2019-04/24/592_233748.html
7. Uniqlo Trading Co. Ltd. vs Guangzhou Compass Exhibition Service Co. Ltd. and Zhongwei Enterprise Management & Consultancy Co. Ltd., Decision by the China Supreme Court, (2018) Zui Gao Fa Min Zai No. 396, summary review of the case at the web page: https://www.frosszelnick.com/china-fighting-trademark-trolls/
9. For instance of “bad faith registration” of trademark done with China transliteration may be seen the case: (i) The Beijing Jiahe Xingchan Lubricant Co., Ltd. (Jiahe) Vs. Trademark Review and Adjudication Board(TRAB) and Doosan Co., Ltd., Doosan Infineon Co., Ltd.
This article is written by Dharani. V from Tamil Nadu Dr Ambedkar Law Universityand the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).
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Abstract
Socio-economic inequalities form rust in our society. Social norms in the early period have been the backbone reason for the prevailing inequalities, as they encouraged partial rules for different sets of societies where higher privileges are confined to a limited class of people. Thereby restricting water, education, worship, living places to others and paving the way for violence.
Women’s equality is not always subject to education and opportunities in public and private forums; it is largely interconnected with the ideals of society. That’s why even after 75 years of independence women are the primary subjects of social violence.
Today, if we take “inequalities have the face of feminine” where only 20% of women come under working-class people, and the violence against them is at its peak1. Nearly 1 in 3 women experienced physical violence or harassment in their lifetime2. The alarming rate of gender-based crime has become a normal sequence in the daily news. Only the law and justice provide gender equality, not the society to a larger extent as Indian society is still tangled in the age-old social norm’s and the unfair game played by the power.
Introduction
Back in India, cruel atrocities were exercised against a targeted group of societies in the sail of casteism. On the other edge, the British, in the exercise of their power, oppressed many Indians and much more in history. All these imply that “violence is a ground of power play” in a majority of the cases, i.e. as a result of spatial differences in social & economic aspects of the society via inadequate access to education, health care, occupation status, nutrition, and so on. Which makes the victims of socio-economic gradient more vulnerable to other forms of violence against them. Though the government has made many initiatives to bridge these unequal gaps in society, regardless, there are a set of people trapped in the indefinite loop of socio-economic inequalities. Among those women have been largely victimized. It is to be noted that around 92% of women are engaged in unpaid household work due to the biased social norms of society3.Transwomen were also indulged in these norms and deprived of many basic amenities. This imbalance abruptly results in a greater disadvantage to these victims, as it is prone to increase the crime rate against them.
A least bad option
No one in the first place opts to be a prostitute, many out of poverty, left with no other option, and, for basic survival, force oneself to be a prostitute. In context to India, there are more than 7lakh women engaged in prostitution4. On account of their work profile, they are considered for granted, an easy target, and treated with less dignity. They face imminent threat & discrimination in day-to-day life, and their fear of being prosecuted, harassed, accused, by the police, and the public fore stops them to act against violent behaviour. Sexual violence against them isn’t considered to be a serious issue. In a study, it has been shown that violence against sex workers increases their vulnerability to HIV infection5.
Laws pertaining to prostitution also increase the risk factor of violence. If a law criminalizes sex work, it doesn’t end right there; it continues to exist behind a veil, thereby leading to more threat and violence in trying to keep their voice lower. Even in rehabilitation centers, the discrimination disrespect doesn’t stop. In some cases, they were forcibly drowned out of their living place.
The stigma portrayed by society against the sex workers resulted in the far inequalities against them. This socio-economic inequality and violence continue to haunt them even after leaving their work, and yet be discriminated against, and it also has an effect on their children. These children are on the verge as they tend to witness all the abuse and unfair treatments, which might be traumatic or might lead to the increase of juveniles. In conscience, to the prevailing pandemic, these workers were trapped in a dead-end loan bond which might force the next generation into it6.
Women in prostitution are the most fragile section of societies that need precise reforms and accurate welfare actions to get them out of their hell
The far widened gender gap
India’s rank in the global gender report as 140 of 156 depicts the structured inequality in our society7. It has become the 3rd worst performer in the south-Asian countries, having an estimated gap of 37.5% yet to overcome gender inequality8. The prevailing gender injustice in India has its root in our cultural institution, which had many social-evil practices against women and girls and has paved the way for violence against them. Despite that, the age-old socio-evil practices have withdrawn from our society women continue to fight against the violence of intimate partners, trafficking, sexual harassment, dowry problem, and so on due to the predominance of patriarchy in our society. It also curtails them from having their own life as the societal ideas expect the women to confine to the picture of patience, sacrifice, and to live for the sake of the family and termed them as the sole carrier of a family’s honour and forced to protect the same. Which deprives them of their rights and sometimes leads to grave human rights violations.
As we already know, the socio-economic disparity and violence go hand in hand, on a note that it is not always the violence is associated with economically weaker women. Also, if in a relationship a woman is of higher economic standard, violence is on the subject of emasculation and demanding more dowry9. ∴ Women from all societies are victims of social violence. So it is to be questioned whether the government is to be blamed or the society?
Is social change an ultimatum?
“Change is the only constant” -a well-approved phrase. Societal ideologies change and evolve over a certain period. To which we play a significant role in molding it in the right form.
It’s our ideologies that reflect in our society, i.e. the way we interact. There were several social movements that have gradually influenced our society. As women’s access to education, which was then a mere dream, was now a reality to a large extent. It is a result of a change in ideas towards women’s education. It is also important for a government to play a positive role in social change through its policies, schemes, and governance. Such policies from the government should be free from any backlogs, and the government should ensure it reaches the right beneficiaries and without any corruption in it.
Responsibility doesn’t stop by criminalizing the violence against women. A welfare action should be taken by the government so that the crime against women will record the least. Government decisions towards certain issues also influence social change, as it represents the majority of people. So bearing that in mind, right actions are to be made both by the government and the people ∴ Together we should stand for a better future where men, women, and other genders are seen through the same eyes & respected equally.
Conclusion
India has evolved to a much better place in several aspects, yet it’s the most unsafe country for women. The strong interrelation between socio-economic inequalities and violence has resulted in the great cause of the current position of women in these modern days. This vicious cycle should have stopped long before, but we made it further away, and now here. At Least in the near future, this grave injustice should be eradicated. The government should also try to intensify their scheme and laws towards addressing the core of the socio-economic problem in a way as to ensure the decline of gender crime rates. Our participation is also mandatory as, after all, our society is what we are. So the ball is in our courtroom. Even the small changes in all our self would reflect in a better future where all of them can stand side by side.
Let the woman be the writer of her story,
Let her shine for her happiness, not for the family.
This article is written by Saurav Narayan pursuing LLM from Central University of Punjab. The article has been edited by Smriti Katiyar (Associate, LawSikho).
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Introduction
“The earth, the air, the land and the water are not an inheritance from our forefathers but on loan from our children. So we have to hand it over to them at least as it was handed over to us”– Mahatma Gandhi.
This is a tale that began 15-20 years ago. The Buxwaha forest is located around 650 kilometres from Delhi, in the district of Chhatarpur in Madhya Pradesh. According to the 2011 census, the entire population is roughly 10,000 people. This forest has existed for a long time. Madhya Pradesh is one of the most important states in terms of FRA implementation, having the greatest tribal population in the country according to the 2011 Census, as well as a strong reliance on forests.
At the time of this story, more than 215,000 trees in Madhya Pradesh’s Buxwaha Jungle were at risk of being chopped down for the purpose of a diamond mine. The government authorised diamond mining in this forest, which meant that not only would the trees be chopped down, but numerous plant and animal species would also be endangered.
The government, on the other hand, said that there was nothing to be concerned about. They were going to plant more trees than they planned on chopping down. Increased employment would contribute to economic growth.
Let’s take a closer look at the timeline’s specifics.
Timeline
The story begins in January 2004, when RioTinto, an Anglo-Australian corporation, found a significant diamond resource beneath Buxwaha. Due to the supposed abundance of monkeys around the location, the diamond deposit had been given the name ‘Bunder’. (Monkey).
The following events occurred in this chronology.
This corporation signed a State Support Agreement with the Government of Madhya Pradesh in October 2010. It was determined that the government would receive a 10% mining royalty from this company’s diamond sales. This information was to be retrieved from this website. RioTinto was supposed to receive 90% of the profits. This region was expected to yield a total of 27.5 million carats of diamonds. At the time of the agreement, the overall area measured 971 hectares. They had also been given permission to clear 954 hectares. More than 500,000 trees were projected to be chopped down at the time.
The area is close to the Panna Tiger Reserve. The Ken River is the lifeblood of the Panna Tiger Reserve. It is home to a large number of alligators. An Alligator Sanctuary also exists here, called Ken Gharial. Aside from these, the Buxwaha forest has a wildlife reserve, with abundant fauna and natural beauty. Because of certain corporate and governmental riches, our country would have lost these natural treasures. However, thankfully, this did not happen. Shehla Masood, an environmental campaigner, deserves credit for this.
It also serves as a tiger corridor between Panna Tiger Reserve and another wildlife refuge. A comparable report was produced by the National Tiger Conservation Authority. The government eventually refused the mining permit after this report.
This region was declared an Inviolate Category by a Forest Advisory Committee in March 2016 on account of its being ‘a forest rich area’
As a result, the corporation made a last-ditch effort to keep mining rights for at least a portion of the territory and a fresh plan was proposed seeking control over 76 hectares.
However, the Forest Advisory Committee claims that mining would represent a significant threat to the high-quality forest area, even with the reduced land. In 2016, Rio Tinto eventually gave up.
In 2018 the government again said that they will revive this project. The government held an auction. The project’s overall capital cost was anticipated to be Rs. 25 billion with the potential to generate Rs. 550 billion. Several businesses submitted proposals-National Mineral Development Corporation, Aditya Birla Group, Adani Group, Vedanta Group, Essel Mining and Industries Limited, and Aditya Birla Group.
The winning bidder was Aditya Birla’s group and was awarded a 50-year lease on 364 hectares of forest property where they may dig for diamonds. The Aditya Birla Group will get about 58% of the earnings from diamond mining under this new arrangement. And the state government will get 42% of the money.
Try to grasp the whole picture of what’s going on. Who owns a country’s forests, rivers, hills, and mountains? Each and every one of the country’s citizens. We all breathe forest air. As a result, every citizen should have a claim to the forest.
Justice Sheo Kumar Singh, a judicial member, and expert member Kumar Verma made up the bench. The environment watchdog also directed the case’s petitioners to send a copy of the plea and pertinent papers to the respondents—the Centre, state government, forest department, and private mining enterprise.
“Learned counsel appearing for the applicant argued that if the project in the question of open mining of diamond by way of cutting the lakhs of trees and deforestation is continued, it may adversely affect and cause deforestation, elimination of about 4 lakh trees, and thousands of tribal living in this forest will be pushed into poverty,” the Tribunal said.
The division bench of chief judge Ravi Vijay Kumar Malimath and Justice Vijay Kumar Shukla stated at a hearing on Tuesday that mining activity should not be undertaken without the permission of the High Court.
Bundelkhand’s water crisis would be exacerbated by the Buxwaha diamond mining project
Bolivia is a nation in South America. The Bolivian Government water supply had been previously privatised. When private firms exercised their authority to control water, costs rose, making drinking water expensive for the general public. Bolivia’s Water War erupted as a result of this. People began squabbling over the water.
Bundelkhand’s water crisis would be exacerbated by the Buxwaha diamond mining project.
A diamond, in actuality, is a carbon structure that has been replicated in laboratories. Creating a diamond in a lab is less expensive. According to recent research, manufacturing diamonds in laboratories is less expensive. Some firms have even said that they will no longer mine for diamonds. Instead, diamonds will only be created in laboratories. Because diamonds are comprised of carbon, carbon dioxide from the atmosphere may be trapped and utilised to make diamonds in laboratories.
Two birds would be killed by a single stone. First, there would be no mining. There would be no need to clear forests. In any case, diamond mining is extremely detrimental to the environment. Energy sources used to operate diamond mines create greenhouse gases. Diesel fuels, electricity, and hydrocarbons used in diamond mining all release harmful carbons into the air. These chemicals cause smog, climate change, and other environmental hazards yet to be discovered. The long-term environmental impact is simply not worth the financial gains a few corporations and countries desire. Carbon dioxide is a greenhouse gas that contributes to global warming. Therefore not allowing diamond mining in the region would have a second benefit as the emission of carbon dioxide will be reduced.
As a result, at the conclusion of this paper, I will make the following recommendation to the Aditya Birla Group: Please explore this alternative. The mining of natural diamonds in a pristine forest will do a great deal of damage. Not only will the trees be destroyed, but the water, tiger reserves, and indigenous peoples will also suffer.
This article is written by Sudipta Ranjan Sahooand the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).
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What is artificial intelligence?
AI is a computer system that can execute activities that would normally require human intellect to be accomplished. It is common for these artificial intelligence systems to be powered by machine learning, as well as deep learning and rules. As a result, you will need to understand how to use the data in a systematic way. It has become a need because of the rise of data-driven service companies.
How is Artificial Intelligence affecting our daily life?
Our daily lives will be impacted positively by artificial intelligence as it helps us remember appointments, suggests articles and news we might be interested in, and more. The database industry as a whole is going to feel the effects of this technology in the not too distant future. For better or worse, artificial intelligence has the ability to fundamentally alter human interaction, not just with the digital world but also with one another, at work and in other socially significant organizations. In order to make sure that AI has a good impact, it is vital that all stakeholders participate in the debates around artificial intelligence (AI).
Why is Artificial Intelligence important for the Indian legal framework?
Recent years have witnessed the use of artificial intelligence in a variety of industries, from hotel concierge robots to automated entertainment and cell phone use cases. It is hard to overstate the impact of artificial intelligence on a wide range of sectors. Because of this, the Indian legal industry has experienced relatively little technological advancement, and attorneys there are still accustomed to and depending on solutions that were developed many years ago.
When it comes to the practice of law in India, artificial intelligence can have a significant impact. Legal research might be one of the most significant areas where AI could have a negative impact on the law.
Within seconds of using Artificial Intelligence, attorneys have access to a wealth of information on the Indian legal system, which is always developing and expanding. To do legal research today, a substantial number of man-hours are necessary; but, with Artificial Intelligence, the whole legal fraternity may be evened out.
“If you have a law company with 400 attorneys or a single practising lawyer, an artificially intelligent platform for research can get the job done in seconds and balance the costs of legal research so that the quality of research is consistent across all parties. Using these technologies, attorneys may better advise clients or litigate their cases, which is a win-win situation for everyone.”
SpotDraft, CaseMine and other Indian legal tech startups are developing Natural Language Processing [NLP] applications and introducing next-generation legal research platforms that help law firms go beyond keyword-based research, thus reducing the time it takes for them to find relevant information. A growing number of legal businesses are investing heavily in AI research, with some even establishing their own AI research laboratories.
What would be the face of future Law firms?
Competition in the legal sector has increased significantly in recent years, both in India and throughout the world. It is now necessary for law firms to take advantage of technological improvements and client needs in order to remain competitive in today’s business environment. Those that turn a blind eye to these developments will find themselves outdated in the next few years. In the future, law firms will look very different from the ones we are used to seeing.
Let us have a look at some of the qualities of sophisticated legal firms:
1. Innovations in servicing clients: Client service and treatment will undergo a fundamental shift over time. Law Firms would approach their clients with fresh ideas and more authentic and cost-effective legal solutions. Law Firms in India now price their services based on the amount of time it takes to generate the services, or in other words, the billable hour technique. However, this billing system will become outdated in the near future. If a legal company wanted to better serve its customers, it may consider using a Performance-Based Pricing Strategy [PBPS]. Due to the fact that customers only pay when they meet their goals, this pricing model is designed to be particularly client-friendly, which in turn helps to build stronger professional relationships between law firms and their clients.
2. Focus from Revenue to Higher profits: Nowadays law businesses focus on raising income, but the rivalry between law firms is always expanding and the need for legal services has remained unchanged, making it incredibly difficult to increase revenue. Law companies will no longer be concerned with revenue, but rather earnings and margins.
3. Making Technology the foundation for growth: As a result of these new AI-based solutions, the legal profession has seen a major increase in efficiency and customer satisfaction in recent years. E-Discovery solutions, contract drafting automation, and trademark search are just some of the legal IT businesses that have emerged in the last few years. To assist law companies become more efficient and maybe lower expenses or obtain larger profit margins, AI-based legal solutions are beneficial. The law firm of the future will not only adopt these technologies, but it will also collaborate with other firms to develop AI-based solutions that might further improve the legal industry.
4. High focus on brand value: In the future, legal firms will put a lot more emphasis on their brand.
The reputation of a law company may be tarnished by a single poor or irresponsible piece of advice from only a few employees, thus law firms need to rely on AI-based legal solutions and platform and tech-savvy professionals in order to enhance their brand value.
Additionally, legal firms must host more and more conferences, as well as attend cross-border seminars and workshops, in order to stay relevant.
Artificial Intelligence is not the replacement of a lawyer?
Lawyers are torn these days about whether AI will replace them or boost their productivity and efficiency in the legal business. Lawyers, contract analysts, trademark search engines, and other legal researchers now have access to a wealth of new tools thanks to technological advancements in the field of law. However, no AI-based software or programme aims to replace a lawyer, and all IA-based software and programmes are boosting the authenticity, accuracy, and result-orientedness of research and analysis.
It is impossible to automate analysis, decision-making, and representation in the legal field.
The use of AI-based software and programmes may significantly decrease a lawyer’s time and effort and enable the attorneys and businesses to deliver more authentic and result-oriented recommendations to their clients.
In India, the legal business is still in its infancy and is eagerly awaiting more AI-based and automated aiding tools and software.
AI-based and automated aiding technologies are not going to replace the role of a lawyer, but rather help them become more efficient and knowledgeable while automating a number of clerical jobs.
Areas where Artificial Intelligence is helping the legal industry
Artificial intelligence is expected to play a major role in the Indian legal sector in the near future, according to some experts. At this point in time, there are several areas where artificial intelligence in law is being utilised.
These include the following:
Due Diligence –Using AI legal software to examine a contract, conduct legal research, or execute electronic discovery duties as part of due diligence is becoming increasingly popular.
Prediction Technology- Using AI legal software to examine a contract, conduct legal research, or execute electronic discovery duties as part of due diligence is becoming increasingly popular.
Legal Analytics- Lawyers can employ precedents and judgments provided by AI in their current cases based on data points from previous instances, as well.
Automation of Documentation- Get your legal paperwork ready in just a few minutes by supplying the necessary documents.
Intellectual Property- The use of artificial intelligence aids in the search and registration of trademarks, patents, copyrights, and other intellectual property (IP) assets.
Electronic Billing- This helps lawyers and law firms prepare invoices according to the amount of work they have done. So a lawyer may charge their clients correctly for the services they have done. In this way, attorneys and clients benefit.
Contribution of artificial intelligence to human productivity: boon or bane?
There is a misconception among attorneys and legal firms that Artificial Intelligence or Machine Learning is a threat to their survival, or put simply, that Artificial Intelligence is going to replace lawyers. Evidence from other sectors and verticals like e-commerce, healthcare and accountancy shows that AI will only help attorneys and law firms to achieve more with less, to become far more productive than their predecessors.”
The application of AI in legal proceedings should begin at the “Bar” and eventually go to the “Bench,” where judges might make use of NLP Summarization to summarise the arguments of both sides. Because of recent case law on the issue of the statute in question, judges were able to rapidly determine which side had validity.
From everything we have discussed thus far, it does not seem likely that AI will replace experts in the workforce. Indeed, an IA-based application will make professionals more productive, efficient and accurate.
How Artificial Intelligence Affects Due Process in Law Firms?
About Artificial Intelligence
Artificial intelligence is an area of computer science that is linked to computers and is capable of doing tasks that would normally need human intellect. It is a broad field of study with several schools of thought. To put it another way, advances in machine learning are causing a fundamental shift in the IT sector. An artificial intelligence system built on the premise that human intellect is capable of finding and completing tasks in a straightforward manner. The notion of artificial intelligence has evolved throughout time as technology has progressed.
The attorneys’ ability to quickly solve and anticipate the outcome of a case is aided by these skills. Some of the behaviours associated with human intelligence, such as problem solving, learning, perception, planning, social creativity, and intellect, are demonstrated by artificial intelligence.
There is a lot of overlap between the use of basic algorithms in simple applications and the use of more complicated algorithms in the framework of strong artificial intelligence.
Uses Of Artificial Intelligence When it comes to online shopping, virtual assistants like Amazon’s Alexa and Apple’s Siri utilise artificial intelligence to help you decide what you should purchase next, interpret what you say, and detect spam and fraud based on a user’s photo.
Types Of Artificial Intelligence
Narrow and broad artificial intelligence, as well as artificial super intelligence. In computers, we discovered a limited form of artificial intelligence.
They are taught how to perform a certain type of activity without a detailed instruction manual.
Siri, Apple’s voice-activated assistant, is a good example of this. General artificial intelligence is a whole other ball game. As a type of intelligence, it has the ability to learn about a certain activity.
It is a versatile shape. Using artificial intelligence, or AI, is a very advanced method. It has the ability to outperform the human race. Decision-making is a part of this process, as is the development of emotions and the creation of art.
Artificial Intelligence And Legal Practices Companies are constantly looking for new methods to improve the accuracy and speed of their work processes via the development of new technology.
Artificial intelligence has found a method to assist attorneys in their day-to-day activities in the legal profession. The use of artificial intelligence in legal research and litigation has revolutionized the practice of law. It is now being used in the field and enables a more efficient work flow.
Artificial intelligence’s current legal applications lie in the following categories:
1. Helps lawyers to perform due diligence and research
2. Provides additional “insights” and “shortcuts” through analytics
3. Create an automatic process in legal work Various uses of artificial intelligence (AI) are now being developed in the legal sector.
According to one of the UK’s most prominent legal and technological experts, this tendency will continue to develop in the coming years.
Susskind thinks this: AI and other technologies are enabling robots to perform many of the activities that people used to believe required human lawyers, and that is not plateauing. “It appears to be happening at a rapid pace,” Susskind predicts that by 2020, the situation will have warmed up.
The lawyer’s principal responsibility is to conduct thorough research on behalf of their client. Legal circumstances are assessed and facts, statistics and proof are confirmed. The lawyer needs to do a thorough investigation before advising his or her clients and taking action on their behalf. Long-term benefits accrue from the due diligence process, but the procedure itself is time-consuming.
Lawyers need to undertake timely investigations for the genuine outcome, as lawyers are also prone to errors and inaccuracies while doing spot inspections.
Advantages Of Artificial Intelligence
1. This helps to reduce human error, as we all have the tendency to make a mistake at some point. It does not happen if the computers are correctly designed. Using a collection of algorithms, artificial intelligence may assist in making judgments based on the information obtained. As a result, there are fewer mistakes and more accurate results.
2. 24/7 accessibility- Humans are designed in such a manner that even in the midst of a hectic schedule, they find time to relax and recharge. 4-6 hours of uninterrupted work per day is the norm for the average person. To help us work around the clock, we may use this technology to create machines that do not even grow bored like people.
3. Helps in repetitive jobs – There are countless tasks that are performed every day, such as sending emails, validating papers, and so on, that may be automated and freed up for human creativity by applying artificial intelligence.
4. Digital assistance – The employment of a digital assistant to communicate with people in advanced companies saves time and money. The user’s needs dictate how the digital assistant functions. If we are having trouble engaging with people, we can talk to them.
5. Faster decisions – As compared to humans, artificial intelligence allows for faster decision-making. A human’s genuine desires and search patterns may already be predicted by the machines they are working with. Humans make decisions based on their emotions and practicality, whereas machines make decisions based on what they have been programmed to do.
6. New inventions – There are several developments in artificial intelligence that assist humans to address big issues.
Disadvantages Of Artificial Intelligence
1. High cost of creations-Installing artificial intelligence is more costly than installing other types of machinery. Large sums of money must be paid in instalments and gear and software must be constantly updated to keep up with changing technology. These are complicated machines that require regular upkeep and repair.
2. Making humans lazy- Humans become lazy when they have to rely on machines for their labour. Humans become dependent on new technologies, and this might have negative consequences for future generations. 1.
3. Unemployment-Robots are taking over much of the work, which reduces the need for human intervention and raises concerns about employment standards. Most companies are now using artificial intelligence robots in place of human workers in order to increase production.
4. Most companies are now using artificial intelligence robots in place of human workers in order to increase production.
5. No emotions- These robots lack the capacity for feeling.. They work according to the programme and disregard the basic emotions that are associated with the hope of a client. In order for a team to function well, it is necessary to build strong relationships amongst members.
6. Lacks thinking out of the box- Every other output may be a huge background for the industry since machines can only accomplish the tasks that they have been designed to do.
Three Ways through which firms Can Use Artificial Intelligence Businesses across the board
Technology that is being used in the legal industry has resulted in more efficient production and lower costs for law firms that are adopting it.
In order for a computer to perform its fundamental operations, it needs artificial intelligence to excite the human brain.
Computers use artificial intelligence to analyze data, draw conclusions, and identify trends.
With the advent of artificial intelligence, workers will be able to pursue various career paths and enjoy improved convenience
1. Legal research and due diligence- The lawyer do not have to bill for time spent doing research if the task is done by a computer in a short period of time. Thousands of rupees can be saved for the customer and research fees eliminated by this method. New aspects of the case can be discovered by using artificial intelligence. It has the capacity to function quickly, which helps speed up arbitration and litigation.
2. Review documents and contacts-According to the specifics of a case, artificial intelligence may examine and flag relevant materials. It is possible for a computer to learn which papers are comparable in relevance if a specific type of document has been identified as being pertinent by a user.
3. Rewriting contracts is made easier by bringing attention to the most important sources and making sure that contract deadlines are always recognised. As a consequence, the workloads of lawyers are lowered. Using AI, problems will be solved faster and more accurately.
4. Predict legal outcomes- Using artificial intelligence, attorneys may use long-term legal data to assist them in specific cases. A lawyer’s perspective on comparable issues can be gained from this book. Many challenging activities may be handled by it, allowing attorneys to spend more time analysing and counselling.
The decision to use artificial intelligence or another type of computer will be left to the lawyer. Decision-making can be aided by a lawyer’s mental growth and advancement in thinking.
Data management tools and encryption codes can be used automatically by artificial intelligence to secure information.
The lawyer may participate in positive change in the legal profession by studying how artificial intelligence is benefitting the future of the firm.
Conclusion
Artificial intelligence (AI) is one of the growing technologies that stimulate human reasoning. Computers can think, learn, and create because of this. If a computer programme relies on human intelligence, it is a r application. There are both advantages and downsides to artificial intelligence, but humans must take care of that and use only the good aspects of this greatest breakthrough for the better future and environment. Human civilization will be destroyed if artificial intelligence is misused, many believe. However, no application of artificial intelligence is meant to harm mankind.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
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This article is written by Puneet Dhanoa from Symbiosis Law School, Hyderabad and the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).
Table of Contents
Introduction
From Blackstone’s Commentaries, summons means“a writ, issued to a sheriff or other officer, to notify a party to appear in court to answer a complaint made against him.” The term summons has been further discussed in the case of Townsend v. US:
It should be necessary to point out that the word has a much wider meaning today. For example, the word attend, as well as the word appear and is sometimes used in the cases in defining summons. In some jurisdictions, it is not a writ or process at all but merely a notice to the defendant that an action has been commenced and that judgment will be taken against him if he fails to answer the complaint. On the other hand, a summons has been defined as synonymous with the process and as synonymous with a subpoena.
Once a suit of civil nature has been instituted, the next step and a significant one is the issuing of a summons. It is only after issuing of summons that the witnesses appear and the statements are recorded and the case goes on. It constitutes an important element for the successful delivery of a fair and just judgment. Summons are important to be issued accurately. If the summons is issued and not served properly then there lies no action against the defendant. However, if the defendant receives the summons and they have been served to him/her and still they don’t appear in the court, then the court can ex parte them.
Order XVI and Sections 27 to 31 deal with the “summoning and attendance of witnesses”. Rules 1 to 21 under Order XVI have provisions for the same. These provisions ensure proper procedure to be followed in a civil suit so as to have witnessed and informed them about the suit. The non- summoning of witnesses would create a great barrier in the way of providing justice adequately and on time. This research work is restricted to the study of the procedural aspect of summoning and attendance of the witnesses.
Extent and scope
The scope of this research will be limited to the procedure that has been established with respect to the matter of summoning of witnesses and the attendance of witnesses that is to be observed in a civil proceeding in India according to the Code of Civil Procedure, 1908 (hereinafter referred to as CPC). The civil proceedings in India will be studied by restraining the study to the summoning and attendance of witnesses in India.
Summoning of witnesses
Provisions in Section 27 to 31
Section 27 to 31 mention the aspect of summoning of witnesses in the CPC other than the Order XVI of CPC. Without the summons to witnesses, the suit cannot move further and summons are one of the most important elements of a civil suit. After the institution of a suit, the next step is issuing if summons. Only after that does the case move forward to other steps like the recording of statements, claims by defendants and framing of issues etc.
Section 27 mentions that once the case is instituted, within 30 days of the same, the summons is given out to the defendant asking them to appear. This summons can be issued in a manner that is prescribed.The summons might be sent for administration to another State too and in a way recommended or mentioned in the guidelines in power in the specific State. The Court received the summons will give orders and act as if they have been issued by the same court and will at that point give the summons back to the Court who issued it along with any documents regarding the procedure of the Court with regards to such matter.
In case the language used in summons received by another State does not turn out to be the same as the language of the record” of that State an interpretation and translation of the issued summon must be given in Hindi, will likewise be given along with the documents of the procedure followed sent according to the provision of Section 28(2). This provision is present to overcome the barrier of language so that the summons is properly issued to the witnesses and they cannot use the non-understanding of the language as an excuse to evade their duty to be present before the court.
Based on the application of one of the parties or by its own has the power to issue summons to any such people to provide evidence or documents as required by the court. In case of non-attendance of the witness or default, the court has the power to punish the person. A warrant can be issued for the default of summons by the person. The court can “attach and sell” the property or penalize a fine that isn’t more than five hundred rupees. The court can also instruct the person to provide security due to his presence and if such person defaults then the court has the power to send him to “the civil prison.”
Provisions in Order XVI of CPC
Rule 1 specifies that:
“Prior to such date as the Court may delegate, and not later than fifteen days after the date on which the issues are settled, the parties will introduce in Court a list of witnesses whom they propose to call either to give proof or to deliver documents and acquire summonses to such people for their participation in Court.”
The party getting the summons in case of participation of the individual will document an application expressing that the purpose of calling a particular witness for the proceedings of the case. The Court might grant permission to a party to request the admission of a witness whose name isn’t specified in the witness list, regardless of summons issued or not, if it is shown that there is adequate reason to specify and include such witness. The summons under sub-rule 2 might be acquired by a party“on an application to the Court or to such official as might be designated by the Court for this benefit.”
Rule 2 talks about the Costs of witnesses that will be paid in theCourt when someone applies for summons. It says that the persons seeking summons for their witnesses will be liable to pay a certain amount of money to make sure the travelling expenses of the person being summoned and other expenses are adequately paid, if such amount is not paid into the court the summons won’t be granted. So as to decide the sum supposed to be paid, the Court may on account of an individual brought to give evidence as a specialist, permit sensible compensation considering the time taken to provide with the evidence and in playing out whatever work of a specialist nature which holds importance for the case. Rule 3 states that the amount of money submitted to the court is supposed to be provided to witness along with the summons to be served.
Rule 14 states that the court can issue summons on its own if it feels it is important and necessary to do so. The court can also order such a person to produce or provide evidence for the matter. All the details and specifications regarding summons have been mentioned in sections 27 to 31 or CPC and Order XVI. Together, these form the basis of every civil suit. Summons are the initial stage in any civil case and hold importance since witnesses are an important factor when it comes to giving a just decision considering the proofs and documents provided by the witnesses.
Attendance of the witnesses
Court has the power to force the individual attendance of any witness living inside the jurisdiction of the court, or irrespective of the jurisdictional restrictions in case the individual called stays at a place, not farther than50 miles from the Court or not more than 200 miles in case of a rail line correspondence or public means of transport for 5/6th of distance, given that the person isn’t excluded with respect to the provisions of the CPC.
A stipulation was added to Order XVI, Rule 19, CPC in Punjab stating that- “a Court in the State of Punjab may require the personal attendance of any witness living in the State of Punjab or the Union Territory of Delhi.” The provisions for the attendance and summoning of witnesses also apply to the parties to the suit if they have to produce a document or act as a witness. They apply in a similar way and to the same extent as they apply to the witnesses who are not involved in the case. If a public servant is unable to attend the court after being issued summons, the court has the power to issue a warrant against him.
A notice can be sent to such a public servant to show cause as to why was there a failure on his part to not obey the summons. In case of failure of attendance on part of the parties and hence the default of the summons issued, the court has the power to levy punishment on such parties. When the witness is in attendance the statements and evidence should be recorded promptly and on time so as to prevent any adjournment.
Under Section 132 of CPC, ladies who as per the traditions and customs of the nation, should not be constrained to show up in broad daylight will be absolved from personal attendance in Court. “The Court has a prudence to absolve from participation as a witness any individual who in the assessment of the Court, is, from infection or ailment incapable so to join in or who, being a Civil or Military Officer of the Government, can’t attend without disadvantage to the Public Service.”The Court might give a Commission regarding the assessment of the witness, whose participation can’t force by law, or according to the conditions indicated all together under Order XXVI of the CPC. The defendant can be exempted from personal appearance if in case he doesn’t stay in the area of the court’s jurisdiction.
The attendance of witnesses is an important part of a civil suit. There exist some obligations on the part of the witness to give attendance based on the authority of the court. In case of failure of attendance, the court has the power to issue warrants. Other than these provisions discussed above, there also exists the provision of exemption of certain individuals like women bound by certain customs and traditions to not go out in broad daylight etc.
Specifications of summons
According to Order 5 Rule 1, the essential need in any summons is “the sign of the Judge and seal of the court giving the summons”. As for the summons to witness, Rule 5 of Order 16 expresses that information should be explicitly be mentioned like date and time at which the witness is needed to be present Alongside these, the justification regarding the presence of the witness, for example, to give proof or to give documents or both ought to likewise be referenced in the summons.
In the event that the person is called for delivering any document, the name and depiction of the document are required to likewise be mentioned in the summons. They should be duly served under the provisions of order 5. It was held that since the summons was issued ordinarily and not by means of special service, they were not considered to be served to the parties. In Rooprani v. Prem Singh, case the parties are not present to accept the summons, they should be duly affixed on the front door or any conspicuous place which wasn’t done in this case and hence it was considered that they have not been duly served.
When a Summon is signed and sealed, it is provided to a Police Officer to serve it on the individual as asked by the Court. It should be served to him in person by means of a copy of the summons. In case the person on which the summon has been served is not present at his house, the summons can be served to a family member who lives with him or the copy can be fixed at the “door of the house” of the person being summoned.The Court after applying due diligence as the case might be either pronounce that the summons has been appropriately served or may give a new summon.
The Summon might be served on a company by sending them to a delegate of the company like a manager. In case the individual called is a government employee, the summons must be delivered at the head office of the department he works in and the head is then responsible to deliver the summons to the person who they have been served upon. When the individual has to be called as a witness, the court may likewise order that a duplicate of the summons might be provided to the individual via post.
Summons can be served in various modes and methods as it is served under Order 5. They should be delivered on such a date and time so as to give sufficient time to the witness to prepare and appear before the court. Summon can be delivered actually to the individual or his approved agent. In case the individual can’t be found in his home for some time, the summons can be conveyed to any adult member residing with the witness.
In Suresh Kumar vs Smt. Godaveribai, it was held that the summons if read by the adult member and returned to the serving officer in the absence of the respondent, was not considered to be served as the serving officer didn’t specify if he waited for a reasonable time for the respondent to return. The Supreme Court recently in a suomoto writ petition for the extension of limitation period due to lockdown held that digital mediums such as WhatsApp, Telegram and Email can be used to send summons. It was also held that the blue tick in WhatsApp can be considered as the acknowledgement of the service.
CPC has defined all the specifications for summons like the seal, sign, explicit information, date and time etc. to be mentioned clearly on the summons. Even the provisions of serving of summons and failure to do so to the person himself and alternatives available have been clearly mentioned. The new and evolving methods of serving summons have been taken into consideration by the court time and again due to the evolving circumstances.
Conclusion
When the issues are framed, the plaintiff and defendant at first need to specify the witnesses who they could get on their own and who they cannot. Then, a list containing the names of all the witnesses to be summoned by the court is prepared and submitted. Along these lines, the summons is given and they ought to be served based on the modes recommended. The summons creates a legal implication on the witnesses to attend the proceedings and be a witness. In case of default on the part of witnesses with respect to the summons, they become liable for being penalized.
The significance of the summons issued is depicted from the fact that failure to adhere to them attracts punishment. The witnessed don’t have anything at stake in the case in question and hence the court by issuing summons creates an obligation for them to adhere to which they have to follow and abide by. The attendance of witnesses holds surmount importance as it helps in the justice delivery process by providing accounts that they tend to be witnesses for. The purpose for a particularly strong procedure is to get and deliver a fair and just judgment at the end which could be possible dependent on the proof and reports procured from the witnesses.
This article is written by Saniya Chand and Kritika Anandfrom UPES, Dehradunand the article is edited by Khushi Sharma (Trainee Associate, Blog iPleaders).
Introduction
The relationship between female labour force participation and development is complex, including changes in economic growth, education, fertility rates, social standards, and other factors. However, women’s labour participation rates only tell part of the storey. Understanding women’s employment is crucial. Policies should target both labour demand and supply to improve job quality. Expanding secondary school education is important, but so is creating jobs that women can access. One of the most important things would be that the women who are dealing with the issue of women’s rights and advantages in India are doing so in a positive way. From ancient times to the present day, women have struggled to achieve social prestige and a respected position in society. At the time, Women in India were in desperate need of laws to enhance their social standing and to ensure sufficient protection against physically and mentally torture.
Dr. B.R. Ambedkar made a lot of excellent and necessary actions towards Indian women at the time. Thanks to our constitution and the struggles of Indian women, Indian women have won respect in society. So, they are treated equally with men in all facets of life. The constitution guarantees women’s equality and empowers the nation to take positive initiatives in their favour.
The Indian Constitution specifies that women must be recognized on an equal footing with males and outlaws any form of discrimination towards women in any sector, especially education, vocational courses, skill development, and employment opportunities. Furthermore, our Constitution ensures the protection of women employees by guaranteeing that their health & security while on the job, particularly those of women who are pregnant, is adequately protected.
The Constitution also safeguards women employees’ integrity by mandating them to work in a safe atmosphere free of discrimination and harassment. To carry out the constitutional obligation, all labour regulations include special provisions relevant to female workers’ health and safety, such as limiting their working hours and reducing their load. New law protects employees against sexual assault at work.
Factors affecting the employment of women
Numerous barriers work against women’s access to employment, economic empowerment and socio-economic fortunes. Education is a very critical factor in advancing women’s employment and socio-economic involvement. The various socio-economic factors are mentioned below:
1) Social Behaviour is the most important factor, and it is also the most accountable for female unemployment. This mentality, which prevents women from seeking employment, stems from a long-standing cultural tradition. It made them remain home and care for the family. Women’s work is largely constrained by social attitude and perception. (Women working outside the home are unsuitable, undesirable, and potentially damaging to their chastity and femininity virtues.)
2) Families still believe that daughters should not be permitted to earn an income. If they are allowed to work, their wages will not be utilised to maintain the family. Fathers are reluctant to let their daughters work and to use their money to help pay for household expenses. Girls are usually discouraged from leaving town for school or work (Again economic compulsions are weakening such traditions and customs but not enough to mend them). Women are either forbidden from obtaining job or are legally prohibited from doing so. For instance, in India, women are not allowed to drive taxis, trucks, or cars due to safety concerns. Women are involved in society, but not in construction.
3) In modern society, marriage has a negative impact on a woman’s ability to find work. Therefore, she enters the job market late or returns to the market after a period of time because they have occasionally had to leave their jobs due to marriage. For females, this particular custom takes precedence over everything else, and marriage is the first priority in their lives as a consequence of which they leave their jobs and face the difficulty of re-entry and otherwise late entry into the labour market as a result.
4) Female domestic responsibilities have been women’s primary responsibilities since ancient times, as though they were created for this purpose. It has a negative impact on one’s employment prospects. They are only required to perform those tasks that will allow them to devote sufficient time to household responsibilities. Women attempt to avoid job assignments that interfere with their household activities and schedule, which can have a negative impact on their opportunities for advancement and employment.
5) Workers’ employment is hindered by a lack of mobility, which might be caused by domestic tasks or inadequacy in child care arrangements. While occupational diversity and mobility are not particularly tough propositions for males, they are extremely difficult propositions for women. Women are unable to simply relocate due to family obligations and a lack of professional skills. When males leave, however, all of the family obligations fall on the shoulders of the women. Women are physically and mentally immobile in terms of location, time, and energy. Likewise, their movement in terms of time is restricted throughout pregnancy and for the first few months following the birth of the child.
6) Indian society has a long-standing tradition of entrusting female children with the responsibility of caring for their younger siblings, whether partially or fully. Female children are often asked to care for their younger siblings even when they are still children themselves. The responsibility of bearing and raising kids forces people to make compromises in their professional lives.
7) The way female children are raised in our society, particularly in rural and small-town settings, leads to their becoming reliant on males. Even as adults, females rely on a male member of their family to accompany them on their travels. It forces people to remain limited to their current location, so limiting their employment choices and options for advancement.
8) In terms of safety and security, women who accept jobs outside of their hometown confront the challenge of finding safe and secure housing. Many employed people who have transferable jobs find it extremely difficult to relocate because they are concerned that they will not be able to find suitable housing in their new location. As a result, women attempt to escape this predicament at the expense of their employment, and there are only a limited number of working women’s hostels available. They like to work in their local area if it is an option. It becomes an obstacle to women’s ability to obtain a gainful job.
9) For the obvious fact that when boys marry, they eventually become the principal breadwinners in their own families, Indians continue to place a higher value on their education and occupations than those of girls. In Indian society, investing in male children’s education takes precedence over other investments. Female children are rarely given preference when it comes to educational opportunities, particularly at the higher level.
10) job-oriented courses of a fundamental kind are often favoured by females over males in terms of training. A huge number of women are enrolled in technical colleges, boutique & fabric painting, and other such elementary courses that prepare them for low-wage positions in the secondary labour market. Female career advancement is therefore often restricted as a result of this. Especially in the business sector, there aren’t many programmes that are specifically designed for women.
11) Women are less likely than men to be unionised because they have a double burden of duty. Women workers are particularly vulnerable due to a lack of unionisation, which does not motivate them to struggle against sex-based issues such as discrimination in promotion & training courses. As a consequence, discrimination against women in India was unable to be completely eliminated.
12) The belief that women are not the major breadwinners in their families and that they merely offer supplemental income has resulted in widespread exploitation of women. Women have been relegated to lower-level positions as a result of the poor wages they receive. Women teachers in small towns and cities are paid less than the min wage that is paid to male employees in these areas. Wage discrimination discourages people from focusing on their performance, and as a result, their career advancement is stymied.
13) Women who work as a supplement to their family’s income do so when the family’s economic situation requires it or warrants it, and they leave when the family’s financial situation allows it. Women work when their families are experiencing financial difficulties; they are requested to provide a helping hand to ensure the family’s survival. Women work solely for the benefit of their families, instead of for their personal benefit and sustenance. Females enter the labour force when men’s earnings become inconsistent, inadequate, or withheld from them. Women’s ability to be flexible in the labour market is limited by the option of recruitment exercised by the family.
14) Gender-Based Discrimination Labour: The division of labour based on gender, which has spread beyond household duties to work full time in recent years. In agriculture, women are primarily engaged in labour-intensive jobs that are physically demanding, repetitive, and low-paying in nature. The division of labour on the basis of gender can be observed even in industries where women are employed in significant numbers, such as textiles, export-oriented industries such as apparel, electronics, and the building and construction industries. Despite the fact that India has a huge number of labour regulations, these rules tend to neglect the experiences of women and have a paternalistic outlook on life.
15) Social Security Measures for Women: Social security is a crucial requirement for all women, regardless of the type of employment in which they are employed and the hours that they work. When it comes to employment, women are subjected to a variety of variables, including sickness, maternity, disability, job uncertainties, and hazards. Through the improvement of working and living conditions as well as the provision of women with security against the uncertainty of the future, they contribute significantly to the realisation of the welfare state goal.
Provisions for women
Sexual misbehaviour is a form of violence in which another person is harmed by the use of power, control, and/or intimidation. Sexual assault, sexual abuse, domestic abuse, dating violence, & stalking all fall under this category. It occurs when consent is not given. Consent is a freely offered and unambiguous consent, not the absence of a no, and it cannot be obtained if a person is intoxicated or under the influence of drugs. Sexual misconduct is viewed as a breach of fundamental freedom and justice as well as a discriminating issue affecting health and safety. It is fundamentally insulting and threatens the rights of women to equality of opportunity and treatment at work. The most important approach should be to avoid such harassment; but, if it does occur, it should be punished as well as the victim should be well protected.
The provisions for women are described as follows:
The Workmen’s Compensation Act is a federal law that provides for the compensation of injured workers. Specifically, it deals with matters where an accident or disease happens at the workplace, resulting in the death or handicap of women workers. This includes financial losses as well as the loss of housekeeping duties. In the event of death, the amount of compensation is equivalent to 50 % of the monthly income or an amount equal to Rs 80,000, whichever is higher, as compensation. However, the legislation that applies to women workers will be the primary focus of our discussion.
The Minimum Wages Act is largely intended to protect employees in the developing world, which accounts for the vast bulk of women’s employment. Its purpose is to provide statutory minimum wages for scheduled employments in order to reduce the likelihood of labour being exploited through the payment of very cheap and sweaty wages, among other things. It also defines the minimum regular working time, the weekly rest day, and the possibility of overtime.
This Act was passed to govern the salaries and wages to people employed in industry and provide them with a swift and efficient remedy in the event of illegal deductions from their salaries or unjustifiable delays in the payment of their wages. In the context of wages, any sums of money or benefits payable to an employee include, but are not limited to, any sums due upon leaving the service, wages in replacement of vacations or leave, overtime earnings, and any bonuses due. (This does not include the value of any dwelling accommodations, the provision of light, drinking, medical care, contributions to any pension plans, travel, or any other expenses.)
Auxiliary Principles of State Policy, Part IV of the Equal Remuneration Act. For example, Article 39 of the Constitution mandates that the state lead policy and those employers pay the same compensation to men’s and women who perform the same or similar work. The Law now covers almost every sort of facility, a considerable expansion. Even if the work is being done in separate locations, the compensation must be the same. If employment of woman is outlawed or restricted by law, a company is not permitted to discriminate against them when recruiting new employees. As a result, employers are forbidden from sex discrimination in things like as recruiting, promotion, training, and transfer.
Important case laws
Some the important case laws affecting the employment of women are mentioned below:
AIR INDIA v NARGESH MEERZA
Specifically, the court found that the terminating of service due to pregnancy was unjustified and arbitrary, and as a result, it was a clear violation of a basic right protected by Article 14. It is equivalent to requiring the underprivileged airline employee to not have children after she has taken up duty and after she has used her services for 4 years to discontinue her employment if she becomes pregnant, and thereby interferes with and diverts the ordinary flow of human nature.
DATTATREYA MOTIRAM VS STATE OF BOMBAY:
According to Chief Justice Chagla, the state could discriminate in support of equality against men under Article 15(1) and 15(3), but it cannot discriminate in favour of men over women.
MRS. SIVANARUL VS STATE OF TAMIL NADU:
On the basis of a clause in her employment contract, the court found that a decision to terminate the services of a lady teacher working in a private school that was recognised & aided by the government because she had become engaged was not only annoying, but also contrary to public policy and unjust.
MOHINI PHILIP VS UNION OF INDIA
The petitioner, a medical officer in the military, was discharged and relieved of duty due to her marriage to another service member. The court ruled that granting the discharge simply on the basis of marriage ignored all relevant factors. As a result, the order was irrational, and the termination decision was invalid. In addition, a circular that does not violate Articles 14 and 16 is provided for.
Conclusion
The study concluded that women’s integrity in society is a reliable measure of society’s advancement. Women currently work in agricultural, plantations work, mine beedi, crafts, and at home. However, social views, traditions, conventions, marriage, gender-based division of labour, lack of confidence, and fear of sexual harassment all contribute to women falling further behind males.
Women workers face numerous obstacles on the job, such low pay, discrimination, and unsafe working conditions. Women’s working and living standards will not improve unless they are protected and governments pay due attention to their oppressive living and working conditions. In the Indian Constitution, it is stated that special care has been given to women’s needs so that they can speak up for their rights equally and contribute to national progress. The building of a new social order whereby all citizens possess equal opportunities for development is also envisaged.
The various specific measures established for the welfare of women, both on a national and international scale, show a tendency towards women’s empowerment in employment legislation. With time, India has made great progress toward equal pay, fair opportunity, preventing and resolving sexual harassment, and providing maternity benefits.
Despite the fact that women make up half the world’s population, gender imbalance remains everywhere. So long as women are denied the same possibilities as males, entire communities will be bound to underperform. Another hour is needed to change social attitudes. Women are unable to dedicate adequate attention to their houses, children, and families. Working women face sexual harassment, emotional stress, and job insecurity. Women struggle to leave their children and go to work early. Stereotypes are people who have preconceived notions about the personality of working women.
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:
This article is written by Ayushi Jhawar, pursuing a 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
Copyright is a form of intellectual property governed under the Copyright Act, 1957 in India which protects creators of original artistic works such as literary works, music, music recordings, films, and television programming. It is granted to the original authors of computer programs, tables, compilations, computer databases, and dramatic and musical works. Copyright protection requires that work meet three requirements. It must be:
Original: In order to be considered original, a work must be created independently. Another work cannot be copied. For a work to meet the originality criteria, it only needs to demonstrate a small amount of creativity.
Authorship work: The definition of a work of authorship for the purposes of copyright protection requires that a creative product falls under a copyright-protected subject matter category.
Fixed: A tangible medium of expression is required to meet the fixation requirement. If a work is sufficiently stable or permanent enough to be viewed, reproduced, or otherwise communicated for an extended period of time, then it is considered to be fixed.
The duration for copyright in India is 60 years after the death of the author. When the work expires it enters the public domain. Despite the fact that copyright law aims to enrich the general public through the accessibility of creative works, creators are under no obligation to make their copyrighted works available. However, copyright registration has certain advantages not only to the author but to the public as well.
Thus, the Copyrights Act is an incentive for creation. Not taking into account other factors hampers cultural creativity where creative participation is open for everyone. This article analyses the importance of copyright as an incentive and also pinpoints reasons where creativity is not merely incentivised by copyrights but other motivating factors.
Reasons for providing copyrights as incentives
We grant copyright because it’s an incentive for people to create, and companies to invest in making them available. There is no doubt that copyright is one of the best institutional designs for supporting the development of a commercial creative industry even in developing countries.
Incentives are often enacted in order to encourage the creation of new works for public use through copyright laws. New works are rewarded by the government with an exclusive monopoly over that work for a certain period of time, after which the public may enjoy it.
In accordance with Section 14 of the Act, copyright consists of a bundle of exclusive rights vested in the owner. Owners of copyrights may only exercise these rights or those who are duly licensed to do so by the owner of the copyright. These rights include the right to adapt, reproduce, publish, make translations, and communicate publicly. Copyright opens up a revenue stream in the form of copyright royalties for the author, which helps in the development of the economy.
Apart from these economic benefits, copyrighted work provides certain moral rights under Section 57 of the Indian Copyright Law. It gives the right of paternity, which is an author’s right to claim his work as his own and to prevent anyone else from claiming it. It also provides for the right of integrity, where the author is entitled to prevent distortion, mutilation, or other modifications to his work, or any other action in connection with such a work that would be detrimental to his honour or reputation. However, not all benefits from the copyright law result in creativity. There may be other reasons for an increase in creativity and not necessarily copyright as an incentive to creativity.
Other factors acting as incentives for creativity
Creative ideas are often supported by other factors besides formal Intellectual Property (IP) recognition, such as market incentives, cognitive psychology, social norms, first-mover advantages, path-dependency, or just plain luck. It is going to be very challenging to map out these factors across fields that vary greatly in terms of markets, participants, practices, and norms.
Observing a copyright-dependent industry makes it difficult to determine if the license is causally related to creativity in that setting, or merely coincidental. A good place to start would be in creative fields that have little or no intellectual property protection.
Some examples are culinary arts, fan fiction, financial instruments, fashion design, sports plays, stand-up comedy, tattoos, and professional magic. Fanfiction, for example, or magic are very niche.However, some of them are huge, such as fashion and cuisine. When we see innovation in these fields, we ought to ask what, beyond copyright, is promoting investment in new creativity.
According to the WIPO study, reputational rewards and returns from altruistic behaviour are important sources of satisfaction for artists. As an example, prizes and grants generate recognition and appreciation for artistic work that exceeds the satisfaction gained from transferring money and annuities (income or prize money alone). There are, however, some trade-offs involved. Artists who perform in public and practice arts altruistically report being more satisfied, however such “give-away culture” also decreases their income. It is less clear-cut than one would have expected from previous economic research that “procedural utility” represents another source of motivation – in other words, the satisfaction artists derive from working in the arts and involving themselves in creative processes. The motivational level of creativity is subjective for each artist or author.
Considering an example of the fashion industry, it is evident that minimal IP is applied. Fashion design is appealing, and it is copied. The design gains market prominence as others adopt it until it becomes a trend. Copying creates trends, and trends promote fashion. It is, however, a two-way street. The trend becomes overdone as more copies of the design appear, and early adopters abandon the trend that copying is helping cement. That’s how trends work.Copying plays a vital role in this process. It fuels the cycle and makes it more efficient. Despite its lack of protection from intellectual property, the fashion industry is not a soulless wasteland-or, if it is, then those incentives aren’t the reason. Sometimes copying contributes to creativity, causing consumer demand, which leads to more production in the fashion industry. This is a very different story from the traditional view that linking copying with creativity justifies copyright laws.
Similarly, considering aesthetic sports. IP law is not very prominent for the same. However, the motivation of the performing artists continues due to rewards and achievements associated with such fields and the reputation one secures by doing such creative acts.
Taking the example of stand-up comedy, though the IP laws are prevalent for the same, the motivation for content creation is not copyright. The motivational factor is the fame or reputation associated with it. Creative content gives chances to comedians to enter new areas such as television, shows, or even movies nowadays.
Conclusion
To ensure that new works are created and made available to the public to enjoy, the primary objective of copyright is to incentivize and reward authors through the provision of property rights. According to this theory, created works are protected from theft by granting certain exclusive rights to creators, who are rewarded with economic benefits, while the public is rewarded with creative works that might not otherwise be created or disseminated. Policymakers should consider all relevant sources of motivation when determining intervention goals and evaluating their impact in order to maximize the benefits to society.
The way works can be attributed to artists is affected by legal mechanisms. Prior research has given too little attention to the issue of attribution and the value of moral rights to creators. Although a study in this area has raised the question of whether national copyright systems are to differ in their treatment of moral rights.
Reforms focused on income may fall short of policy goals. As a result, policy choices in this area are particularly challenging, since they need to be balanced between the concerns and interests of new amateur creators, original creators, and right holders, as well as society’s taste for variety, especially when it comes to “transformative” uses. A strong emphasis should be placed on balancing rights with monetary incentives. Good governance has to go beyond simply accounting for monetary incentives.
Otherwise, copyrights can be a tax on learning. In other words, a tax on culture and threatens creative growth. The tax is imposed on speech. These taxes are not just an inconvenience. People who cannot or will not pay it to face a barrier. Copyright can hinder the spread of knowledge and culture by excluding some people from art and literature that they would otherwise consume.
Legal frameworks that are designed to encourage creativity can also provide untapped motivational sources. The discussion needs to extend beyond income and the income effects on creativity and focus on the mechanisms enshrined in copyright law.
References
Vaish Associates and Advocates, India: Copyright Law in India, Mondaq, (Jun., 2015), https://www.mondaq.com/india/licensing-syndication/406982/copyright-law-in-india.
Christopher Jon Sprigman, Copyright and Creative Incentives: What We Know (and Don’t), Houston Law Review, Vol. 55, No. 2, 2017, NYU Law and Economics Research Paper No. 18-03, (Jan.02, 2018) https://ssrn.com/abstract=3095740.
Jonathan M. Barnett, Shopping for Gucci on Canal Street: Reflections on Status Consumption, Intellectual Property, and the Incentive Thesis, 91 VA. L. REV. 1381, (2005).
Seemantani Sharma, A Copyright Incentive for Promoting ‘Aesthetic Sports’ in India, Entertainment and Sports Law Journal 17(1), p.7, (2019), https://doi.org/10.16997/eslj.232.
Rebecca Giblin, The difference between copyright’s rewards and incentives (and what it means for getting creators paid), Authors Interest, (Oct., 2018), https://authorsinterest.org/2018/10/26/the-difference-between-copyrights-rewards-and-incentives-and-what-it-means-for-getting-creators-paid/.
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Table of Contents
The integral importance of child laws
Children are the build blocks of the nation, the tomorrow of the world they are the requisite to nation building. In the eyes of law primarily they are viewed as vulnerable defenseless units and therefore require extra-legal padding. In the view of the same there exist a multitude of laws all in place to further the cause of child rights. The article delves in to a deep scrutinization of child laws prevalent in our nation.
Child security is viewed as one of the primary obligations of the public authority just as the general public and considering the difficulties and issues looked by the children. There have been numerous cases of rape, Child marriage, starvation and malnourishment, attacks, Child battering, prostitution rackets, and Child labor which by implication features our general public’s own inability and rampant vilification existing in our society.
‘Child’: as defined by law:
Under the Child Labor (Prohibition and Regulations) Act, 1986, Child by definition indicates an individual who has not finished their fourteenth year.
Under the Child Marriage Restraint Act, 1926, the definition in terms of age is contingent on their gender. For women it is set at 18 years of age on the other hand for men it happens to be 21 years of age.
Constitution of India, 1950: a glimpse of the protective framework
The constituent assembly has highlighted the values of humanity throughout and also the vision of a peaceful and developed nation. We can all agree that a key factor in the creation of the same is protection of children and constant nurturing and guidance. The constitution, therefore, has several provisions dedicated towards the cause some of them are listed below:
Article 21A: The article upholds the integral importance of education by guaranteeing free and compulsory education to all children alike. The age limit for the same has been capped at 14 years, this framework exists to battle financial barriers as well as stereotypes keeping children away from education at large.
Article 24: It exists to denounce the evil of child labor prevalent in the society. The status quo as well history marks the problem of employing young children in sectors away from education. In the wake of the same article 24 provides that no child shall be employed in any sort of hazardous industry below the age of 14 years.
Article 39(e) : The above-mentioned article falls under the ambit of directive principles of policy so enshrined in the constitution. It makes mentions of the imperative involvement of the state in order to prevent. the involvement of children in vocation that do not suit them. Basically, the article upholds the right of the children to bask in their innocence and focus on their individualistic development as opposed to the economy as a whole.
Article 39(f) : The article endows on the state the moral obligation to provide children with the means to further their development. In a nutshell it talks about sheltering them from societal vices such as exploitation, trafficking and so on as well as creating opportunities dedicated towards their development.
Article 45: The provision primarily highlights the states obligation of economically funding children below the age of six years. Funding here can be construed as providing basic nutrition and care necessary for healthy development.
Fundamental Rights: Part III of the constitution categorically lists out a number of rights available to all citizens alike. The term citizen here also includes children and therefore they automatically possess the above mentioned rights. Some of the specific rights so endowed are given below.
Article 14: Article 14 asserts the principle of equality by guaranteeing equality before law to all humans alike. The article enshrines principles of natural justice as well as the basic meaning of humanity.
Article 15: Discrimination on the basis of a multitude of criterions be it creed, gender, caste and so on is strictly prohibited. India is an apparent amalgamation of several section this article ensures an equal status for all of them.
Article 21: This article includes several rights such as the right to life, privacy and also livelihood. Judiciary has construed it in a liberal manner in order to broaden the scope of the same. In the case of justice K.S. Puttasway V. Union of India, Article 21 was expanded to include privacy as one of the basic inherent rights vesting with all citizens.
Article 23: Right to being shielded from being dealt and constrained into fortified work.
Article 29: Right of minorities for assurance of their inclinations.
Article 46: Right of more fragile areas of individuals to be shielded from social foul play and all types of abuse.
Article 47: Right to sustenance and way of life and improved general wellbeing.
The Act was enacted during pre-independence era but still continues to be in force. Object of the Act is eradicating the evils arising from prevalent concept of child labor.
An agreement to pledge the labor of children below 15 years by a parent or guardian of a child in return for any benefit is void., The act sought to penalize the pledger and the pledgee. Pledgee is liable for a fine of rupees 200 and pledgor is liable for a fine up to rupees 50.
This is the most punctual unrepealed enactment on the resolution book controlling the work of under matured people in particular sorts of occupation. It gives: No Child who has not finished 15 years old can be utilized in any occupation associated with transport of travelers, products or mail by railroads, or a port authority inside the constraint of a port. Restricted insurance to the Child who are inside 15-17 years old. This insurance isn’t pertinent to kids who are utilized as either students or are getting professional preparing.
The main Welfare Legislation passed by the Britishers was Factories Act,1881. The execution of the Act was limited. The Act was again revised in 1948 and the premise of the same is centric to prohibition of children under the age of 14 years old in factory. Production line covers the foundation, which utilizes at least 10 laborers with the guide of intensity or at least 20 specialists without the guide of power. People who are between the 14 and 15 years, they can be utilized under after limitations gave under Section 68, 69 and 71 of the Act.
Such people ought to have testament of wellness gave by a Surgeon and should convey a symbolic giving a reference to such certificate. The affirming Surgeon ought to follow the strategy set down in Section 69. They ought not work around evening time for example 12 successive hours including the period from 22:00 to 6:00. The act therefore mandates utilization of the work force and the necessary measures that must be kept in mind while carrying out industrial work.
The extent of Mines Act is quite limited. It Applies to unearthing where activity to look for or acquiring minerals through excavation, digging or even working deep underground takes place. The concerned act not just restricts the work of any Child however even presence of a Child in any mine which is subterranean or in any open cast working in which mining activity is conveyed on. Adolescent who has finished the age of sixteen years is permitted to work just on the off chance that he has a clinical testament of readiness for work. Certificate is substantial for a year in particular. This therefore emphasizes on the apparent safety standard that one must maintain while employing children through medical assurance and also emphasizes the need to keep away children from the apparent danger of dingy mines.
This Act revolves around the troublesome relation between adolescents and law. That is, it governs the scenarios where a child might end up on the wrong side of the law. It highlights the need for care and security, by accommodating appropriate consideration, assurance and treatment by obliging their advancement needs. The same is achieved through encouraging mediation and mien of issues to the greatest advantage of kids and for their definitive recovery through different foundations set up under the Act. The act therefore creates a separate reformative institution for children altogether and also governs the process of hearing, nature of punishment. The same exists as a separate mechanism in order to nurture them while reforming them simultaneously.
Free and compulsory education is considered to be one of the most basic and primitive right. Education is a tool for not only enabling individualistic change but also bringing about a change in the society as a whole. Under the umbrella of the act the people are bound to provide free and necessary training to all offspring of India falling in the 6 to 14 age group.
A child shall not be kept from climbing the ladder of education up till they have acquired the most basic rudimentary education the same shall not be subject to the scrutiny of board. If a Child above the age of 6 has not been conceded in school or couldn’t finish their rudimentary instruction, at that point the individual in question shall be admitted in a class suitable to their age.
The child in special cases to level the playing field as well as understand the complex demand of the grade in which they fall in, acquire special training. That is if a child is admitted in school directly in 3rd grade it becomes imperative to teach the kid the most basic of phenomenon such as the number system, alphabet and so on. Given further that a Child so admitted to rudimentary training will be qualified with the expectation of complimentary instruction till the finishing of rudimentary schooling even following 14 years.
Other than asserting the importance of education the act also ascertains the criterion of admission. It categorically lists out a number of documents necessary for the same as well as lists out the circumstances under which it is reasonable for the school to not admit a kid.
For the motivation behind admission to rudimentary instruction, the age of a Child will be resolved based on the birth testament gave as per the Provisions of Birth. Passing’s and Marriages Registration Act 1856 or based on such other archive as might be recommended. No Child will be denied affirmation in a school merely due to absence of age verification A Child who finishes rudimentary instruction will be granted a testament.
The act enlists the need to create a structure through maintaining a hospitable student teacher ratio in order to stimulate the cause of education to the maximum. Improvement in the nature of instruction is significant.
Object of the Act is to provide for the regulation and control of training of apprentices in trade and for matters connected therewith. Apprentice is a person who has acquired or is in the process of acquiring apprenticeship training in a designated trade in pursuance of contract of apprenticeship. No person is qualified for being engaged as an apprentice to undergo training unless they have completed the age of 14 years and satisfy the other standards of physical fitness and education as may be prescribed.
Therefore, the act enlists the requirement of age as well as certain skills in terms of physicality as well as craftsmanship which makes the training a suitable fit. If the apprentice is a minor their guardian is required to enter into a contract of apprenticeship with the employer and it shall be registered with Apprenticeship Advisor. It is necessary to shed legal light on the entire process through mandatory registration in order to create a sense of accountability.
The Act is an amalgamation of varying recommendations put forth by different suggestions made committees. The act was created due to incessant need for a uniform regulation addressing the grass root problem of child labor to accomplish this objective, parliament ordered the Child Labor (Prohibition and Regulation) Act, 1986.
(CLPRA) which came into power on 23 December 1986. The purposes behind the enactment of Child Labor (Prohibition and Regulation) Act, 1986 are:
Restricting the work of Child for example the individuals who have not finished their fourteenth year, in indicated occupation and cycles.
Setting down systems to conclude adjustments to the timetable of prohibited occupation or cycles.
Controlling the states of work of kids in business where they are not denied from working.
Setting down improved punishments for work of Child disregarding the arrangements of this Act and different Acts which preclude the work of kids.
The act emphasises on the importance of nutritional of children. Therefore, it deals with regulation in relation to breastfeeding, mapping the trajectory of nutrition. The act also deals with counterfeit milk substances in circulation which can prove to be harmful for kids.
The act aims to protect children from sexual predators it prescribes serious punishments for people indulging child pornography, rape and harassment. Under the act relief in cases of such cases is sought under special courts away from the generic judicial hierarchy. The act defines the term child as well as several heinous offenses so listed. It looks into several other aspects such as barring media from disclosing the identity of the victim (Section 23), providing a speedy trial (Section 35), mechanism for rehabilitation of victims. The act therefore strives to battle the cruelty evident in the society.
Policies of the government regarding children
A per the Constitution of India, Article 15(3), State should make exceptional arrangements for kids. Article 39 of Part IV of the Constitution requests that the State direct its strategy towards making sure about (in addition to other things), that Child are not mishandled; not constrained by financial need to enter diversions unacceptable to their age or strength; and that they are offered occasions to create in a sound way and in states of opportunity and respect, secured against good and material deserting.
Also, the UN Convention on the Rights of the Child (UNCRC), embraced by the UN General Assembly in 1989, conveys widespread acknowledgment of Child s’ privileges to its part countries.
Indian implementation of the cause:
I. Promoting the vision of the UNCRC, the Juvenile Justice (Care and Protection of Children) Act, 2015 is India’s basic law in managing Child needing care and assurance. It takes into account their necessities through consideration, assurance, improvement, treatment, social reintegration, through its Child agreeable methodology by tending to issues to the greatest advantage of kids.
II. The Protection of Children from Sexual Offenses Act (POCSO), 2012 is one of the Indian government’s most reformist laws, to battle sexual brutality against Child s. POCSO qualifies penetrative rape on a Child beneath the age of 12 as exasperated penetrative rape, a wrongdoing culpable with a fine and a base term of thorough detainment for a very long time, which can be reached out to life detainment.
III. The Criminal Law (Amendment) Act, 2013’s presentation of a few new sexual offenses under the Indian Penal Act, which rebuffs assault of a female under 16 years is viewed as a bothered type of assault culpable with a fine and a base term of thorough detainment for a very long time, which can be stretched out to life detainment.
The Government of India has made various arrangements with respect to the physical, mental and social improvement of the offspring of the country. The Government has likewise made numerous strategies on the wellbeing and instruction of the Children. Coming up next are a portion of the significant arrangements of the Government with respect to Children:
Public Policy for Children, 1974.
Public Policy on Education, 1986.
Public Policy on Child Labor, 1987.
Public Health Policy, 2002.
National Policy for Children, 1974
India is one of only a handful few nations in the global community who has a composed arrangement for kids. This strategy proclaims that the kids are the preeminent and imperative resource of the country. The policy therefore includes a number of pointers to further the cause:
All the kids will be covered under a complete wellbeing program.
Projects to be actualized to give nourishment to kids and eliminate insufficiency from the eating regimen of the kids.
To give non-formal training.
Exceptional regard for be taken towards the genuinely tested, intellectually impeded children.
All kids will be guaranteed correspondence of chance.
National Policy on Education, 1986
This was second approach on education; the principal strategy of 1968 was reexamined by this arrangement. This approach was viewed as a major milestone. This approach gave most elevated significance on the Universally Primary Education.
It additionally offered significance to youth care and schooling.
It gave accentuation on the need of enormous scope speculation on the improvement of the rights of children in India through Government and through deliberate associations.
Later on, a number of projects were attempted all through the nation like the Operation Black Board, Sarva Siksha Abhiyan and so forth The Operation Black Board and Sarva Shiksha Abhiyan gained popularity throughout the nation.
National Policy on Child Labor, 1987
The National Policy on Child Labor is a significant effort on the part of the state actively working towards the progressive elimination of child labor in India. The policy creates an umbrella approach in terms of actions in the field of education, health, nutrition, integrated child development & employment.
The National Policy on Child Labor is set under the following three heads:
The plan developed by the legislature.
Focusing on general and specific programmes or schemes that aim to benefit the cause of eradication of child labor wherever possible.
Project-based planning of action in areas where the concentration of child labor happens to significantly higher engaged in wage or quasi-wage employment.
National Health Policy, 2002
The very first policy on health, 1983 aimed at achieving good health for all by the year 2000. The second policy on health, 2002 envisages giving priority to school health problems which aimed at health education & regular health check-ups at schools.
The principle feature of this policy was to prevent communicable diseases like HIV/AIDS &to provide for universal immunization of children against all major preventable disease.
Laws related to specified social issued related to children
Sex – selective abortion, female feticide and infanticide
Conducting or associating or helping in the conduct of PND techniques or tests in an un-registered manner.
Sex selection on a woman or a man or both or on any tissue, embryo, conceptus fluid or gametes derived from either one or both of them.
Taking the services of an un-qualified person, whether on honorary or payment basis.
Conducting a pre-natal diagnostic test for any purpose other than those mentioned as legal under the ambit of the act.
Sale, distribution, supply, renting, allowance or authorization of use of any ultrasound machine or any other equipment capable of detecting sex of a fetus to non-registered units. The regulation of the same must be legally registered.
Advertisement or communication in any form in print, electronic media or internet by individualistic entities, medical professionals or companies on the availability of sex determination and sex selection in the form of services, medicines, or any kind of techniques, methods or ayurvedic medicines.
Laws related to children: Indian Penal Code, 1921
Provisions falling under the ambit of Indian Penal Code:
Section 82 establishes that any act by a child under the age of 7 years does not connote an offense.
Section 83 talks about determination of an act by a kid in the age group of 7 to 12 years through deciding on the maturity and judgment of the child in question.
Section 89 encourages people to help children in need by asserting that an act done in good faith to protect them is not an offense.
As per Section 312 voluntarily causing a pregnant woman to miscarry the unborn baby is punishable by law.
As per Section 315 act done with intent to prevent a child being born alive or to cause it to die after birth is punishable by law.
Causing death of an unborn child under Section 316 is considered as a serious offense.
Section 317 penalizes parents for exposing and abandoning of a child below 12 years.
Section 318 concealing the birth of a child by secretly disposing their body is punishable.
The punishment for these offences extends from two years up to life imprisonment, or fine or both.
Child marriage
Implementation of Prohibition of Child Marriage Act, 2006 establishing forestalling Child relationships with upgraded disciplines of thorough detainment for a very long time and additionally fine of INR 1 lakh.
The act gives a comprehensive definition of the term ‘child’ by setting an age bar to mean a male under 21 years and female under 18 years. A minor is characterized as an individual who has not accomplished the period of greater part according to the Majority Act.
There are arrangements for upkeep of the young girl. The spouse is subject to pay the upkeep on the off chance that he is a significant that is attained majority. On the off chance that the spouse is a minor, the onus to pay the upkeep would automatically fall on his parents so on and so forth.
The legitimate status of a Child marriage is voidable at the choice of the gatherings. Be that as it may, if the assent is gotten by extortion, duplicity, exploitation or if the Child is allured away from his legitimate guardians and if the sole reason for existing is to utilize the Child for dealing or other improper purposes, the marriage shall be held to be void.
The Act likewise accommodates the arrangement of a Child Marriage Prohibition official whose obligations are to forestall Child relationships and spread mindfulness with respect to the equivalent. Therefore, employing people in official capacity to put a stop on the heinous practice as well as spread awareness about the cause.
Child labor
Children (Pledging of Labor) Act, 1933 declares any agreement by a parent or guardian to pledge the labor of a child below 15 years of age for payment or benefit other than reasonable wages, illegal and void. It also provides punishment for such parent or guardian as well as those who employ a child whose labor is pledged.
Article 24 enshrined in the Fundamental Rights and the Directive Principles of State Policy, lays down that no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
The Bonded Labor System (Abolition) Act, 1976 prohibits forcing someone into warranted labor for debt compensation. The act extinguishes all debt agreements and obligations. It prohibits creation of any new bondage agreement and discharges warranted laborers from all debts that they were warranted. Compelling someone to render warranted labor is punishable below the law. This includes penalty for fogeys WHO pledge their kid or alternative relations to figure as a warranted jack.
The Child Labor (Prohibition & Regulation) Act (CLPR Act) 1986 prohibits employment of a baby in eighteen occupations and sixty-five processes and regulates the conditions of operating of kids in alternative occupations/ processes. As per this Act a baby means that someone who has not completed fourteen years of age. The Act provides penalty for the offence of using or allowing employment of any kid in resistance of the provisions of this Act.
List of alternative labor laws that proscribe kid labor and/or regulate operating conditions for kid laborer’s and might be accustomed book the employers is as follows:
The Factories Act, 1948.
The Plantation Labor Act, 1951.
The Mines Act, 1952.
The businessperson Shipping Act, 1958.
The Apprentices Act, 1961.
The Motor Transport staff Act, 1961.
The Beedi and smoke staff (Conditions of Employment) Act, 1966.
The W.B. outlets & institution Act, 1963.
Child trafficking
Child trafficking is the fastest growing and the third largest organized crime in India. According to UNICEF 12.6 million children are engaged in unsafe occupations. According to NHRC of India 40,000 children are abducted each year out of which 11,000 are untraced. According to The Global Slavery Index, existing figure of slaves is 18.3 million in India. Every 8 minutes, a child is missing in India.
The legal framework obtainable for addressing a case against kid trafficking is as follows:
The Indian legal code 1860 – The IPC punishes cheating, fraud, kidnapping, wrongful confinement, criminal intimidation, procuring minors, shopping for and commerce of minors for immoral functions.
Special and native Laws that may be accustomed book explicit forms and functions of trafficking include:
The Constitution of India, 1950 guarantees generic protection to all citizens alike including children as listed below:
Article 14 talks about equality before the law and equal protection of laws to every and each person within the country.
Article 15 prohibits discrimination or prima facie differentiation on the basis of race, caste, sex, descent, creed, place of birth or residence.
Article 16 of the Constitution Prohibits discrimination on grounds of race, caste, sex or place of birth in any public employment or availment of any public opportunity.
Article 17 abolishes ‘Untouchability’ and declares the practice of ‘untouchability’ in any manner, a punishable offence.
The first Indian law that came into force to produce for penalty for the preaching and follow of ‘Untouchability’ and for any matter connected with it had been ‘The Protection of Civil Rights Act, 1955’. Even job a scheduled caste by their caste name or use of casteist slurs for example ‘chamar’ may be a punishable offence below this law. It also prohibited to enquire about the caste of an individual.
In 1989, the govt of Bharat instituted ‘The scheduled Castes and scheduled Tribes (Prevention of Atrocities) Act, that perceives different types of demonstrations of savagery and separation incurred upon the scheduled Castes and therefore the scheduled Tribes by Non-Scheduled Castes and Non-Scheduled Tribes as serious offenses.
It likewise accommodates foundation of Special Courts at space level to aim the offenses under the ambit of act, arrangement of Special Public Prosecutors to direct cases in Special Courts, and burden of paying a fine by the State.
Street and runaway children
Juvenile Justice (Care and Protection) Act 2015 – The JJ Act, 2015 provides for reinforced provisions for each child in would like of care and protection and child in conflict with law. a number of the key provisions include:
Change in word from ‘juvenile’ to ‘child’ or ‘child in conflict with law’, across the Act to get rid of the negative connotation related to the word “juvenile”.
Inclusion of many new definitions like parentless, abandoned and relinquished children. The act has created a segregation between petty, serious as well as atrocious offenses in order to decide upon the quantum of the punishment.
Special provisions for atrocious offences committed by child greater than the age of sixteen, the section containing the same exists in singularity.
A distinctive chapter on Adoption to counter adoption of orphan, abandoned and relinquished children; it sets in place a mechanism in order to regulate the system of adoptions.
The Narcotic medication and hallucinogenic Substances Act, 1985 –
Under the ambit of the given law, the regulation and supply of illicit substances is controlled. The creation, ownership, transportation, purchase and supply of any narcotic drug or hallucinogenic substance and makes the entity subject to discipline. The use of weapons or arms, use of children and minors or in association with nursing instructive foundation or national assistance workplace square measure some of the justification for higher discipline.
The interference of Illicit Traffic in Narcotic medication and hallucinogenic Substances Act, 1988 is construed as accessory to the crime and therefore contains a separate charge under the act.
Child mendicancy
Kidnapping or maiming a minor for mendicancy is punishable below Section 363A of IPC. As per Section 2(1) of the metropolis interference of mendicancy Act, 1959, “Begging” means-
Soliciting or receiving almsgiving, in a very public place whether or not or not below any pretense like singing, dancing, fortune telling, playing or giving any article for sale.
Entering on any personal premises for the aim of soliciting or receiving alms.
Exposing or exhibiting any sore, wound injury, deformity of diseases whether or not of a personality’s being or animal, for extorting alms.
Allowing oneself to be used as Associate in Nursing exhibit for the aim of soliciting or receiving alms.
Presently, there is no Scheme of the Central Government on Beggary nor there is a central law on the matter. The States are responsible for taking necessary preventive and rehabilitative steps. Around 22 States as well as Union Territories have enacted their own anti-beggary legislation or adopted legislation enacted by other States or UTs.
Kidnapping of children on the other hand is subject to section 361, 363, 369, 372, as well as 373 of the Indian Penal Code, 1921.
Conclusion and a way forward
Several pioneers of the society unanimously agreed on the importance of children in the world. One such example is the late president of US Sir John F. Kennedy who one said, “Children are the world’s most valuable resources and its best hope for future”. History has witnessed several atrocities and progression in the view of the same India is on the path of development. The common goal here is to ensure child safety and create a peaceful atmosphere for growth. There exist several acts in circulation all targeting specific cruelties aimed at children be it discrimination, exploitation, labor, marriage and so on. However, the there is a lack of active implementation.
In our view the reason for the same is also fueled by the fact that there is minimal awareness on the rights so guaranteed to children. In the hindsight it is imperative to remember that drafting a law is not the entire solution merely a step towards to it. Therefore, there is a need for deep research over the grass root issues plaguing the society as well as spreading awareness about the same. Several rural areas in India still witness child marriages, plethora of rapes go unreported, the education rate remains low. The laws governing the same require review and specific attention. The abundance of laws clearly points towards the apparent loopholes and liberal implementation which leave scope for heinous atrocities to still occur.
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