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An overview of game theory in contract negotiation

By
Oishika Banerji
-
0
negotiating contracts

This article has been written by Rashmi C pursuing the Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho. This article has been edited by  Zigishu Singh (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).

Introduction

In the modern economy, business decisions, including contract negotiations, stem out of interactions, discussions, and deliberations, and these are bound by rules, sequences or logic, whether express, implied or tacit. Decisions are made based on rational and logical thinking, after having conducted sufficient research and analysis on the subject matter to be decided. Game theory is a versatile tool that aids the negotiating parties to make strategic decisions based on the probability of the responses of the other party(ies) to a particular line of thought. Game theory has wide-ranging applications, not only in the field of economics, business and finance, but also in physics, chemistry, biology, medicine, psychology, mathematics, governance, and many more. Thus, the application of game theory can be found in any area where there are choices and/or likely outcomes. Contract negotiation is one such field where the application of game theory can be found.

Brief history of game theory

Game theory was first pioneered by Jon Von Neumann, when he published his paper on mixed-strategy equilibria in a two-person zero-sum game, and provided proof for the same. He used Brouwer fixed-point theorem to plot points and identified convergent convex sets in the outcomes, which later became the standard method in game theory application. This was later followed by his book Theory of Games and Economic Behavior, written in 1944, which he co-authored with Oskar Morgenstern, that dealt with multiple player games involving cooperation.  Game theory was widely developed in terms of its aspects and applications during the 1950s by many scholars. Today, game theory is applied across a multitude of fields. 

Game theory

Game theory deals with the modeling of strategic responses and outcomes of the interaction between two or more persons within a situation containing a set of definite rules and outcomes. It explains how people make decisions.

In the paper “Self-refuting Theories of Strategic Interaction: A Paradox of Common Knowledge”, Cristina Bicchieri defines Game Theory as “the study of mathematical models of conflict and cooperation between intelligent and rational decision-makers”. 

Some of the important terms used in this theory are:

  1. Game – Any situation or set of situations the result of which is dependent on the actions of two or more decision-makers.
  1. Players – A participant; a strategic decision-maker within the game’s context.
  1. Strategy – A plan of action that a player will take based on the set of circumstances that would arise within the game.
  1. Payoff – The benefit, result or the payout that the player would obtain from a particular outcome. The payoff may be quantitative or qualitative, such as  utility, sense of achievement, etc.
  1.  Information Set – The information available to the players at a given point in time. This term is usually applied when the game has an element of sequence to it.
  1. Equilibrium – The point in time at which players have made their decisions and the outcome has been arrived at.

There are multiple types of “games” that are used in the domain of game theory, such as:

  1. Cooperative and non-cooperative games
  2. Normal form and extensive form games
  3. Simultaneous move and sequential move games
  4. Constant sum, zero-sum, and non-zero-sum games
  5. Symmetric and asymmetric games

As per this theory, each situation is termed as a “game”, since the persons involved in them make decisions based on how they value and perceive the possible outcomes of the choices, made either by them or the other person. This can be true even when a person is making decisions that only affect himself.. Each person involved in a game is called a “player”. 

When you are involved in a “game”, you would make  decisions taking into consideration the choices and alternatives of the other player(s). But in the process of doing so, you must also consider the fact that the other player(s) are also thinking about your choices and alternatives, and making his decisions taking into account this factor, and so on. Though it seems complex, subtle and tricky, the  application is quite  simple. 

Application of game theory in contract negotiation

There are about 30 different games that model all sorts of scenarios in life and business. Among these, four are particularly important to contract negotiations. These are:

  1. Chicken;
  2. Trust;
  3. Prisoner’s Dilemma;
  4. Stag Hunt.

The result of the negotiations would depend significantly on the type of game we adopt in our negotiation process. During negotiation, there may also be a need to change the game to adapt to the situation. There is no one right or wrong game, as it depends on the strategy that the other party adopts. And, adopting the game theory will not guarantee success. However, understanding and implementing the concepts derived from game theory would help in identifying the other party’s strategy and allow one to adopt a suitable strategy to tilt the game in their favor.

The different models are explained below:

  1. CHICKEN:

Chicken is one of the most common forms of games played during negotiations. It is used when one party has a position of dominance or influence over the other. Chicken is a situation where two parties engage in a heated discussion activity that would result in serious damage or harm unless one of the parties accedes to the other. Chicken is not a collaborative effort, but rather a gameplay of dominance and coercion.

The Cuban Missile Crisis in 1962 – a 13-day standoff between the United States and The Soviet Union (along with Cuba at the center) – is one of the most popular examples of the Chicken strategy. Both nations used their influence and power to try to dominate the other, resulting in an impending nuclear war. The war was finally averted when both nations stopped using this strategy and instead reached a negotiated agreement.

Illustration:

Company A, the holding company, would like to enter into a Technology Transfer Agreement with its subsidiary, company B. During the course of negotiations, company B wants to transfer only the ownership, but not the possession of the technology, and has a hard stand on it. Company A is looking at a complete transfer of all rights, including the possession. 

The negotiators for company A, upon understanding that company B does not intend to make complete transfer of all rights, uses its position as the holding company to exert influence over company B, resulting in company B’s negotiators finally relenting to a full transfer of all rights related to the technology. The negotiations result in a successful execution of the agreement.

  1. TRUST:

The strategy of trust involves two parties, wherein one party enjoys a position of influence or dominance over the other (called the proposer). The party having the position of dominance, due to its position, determines the distribution of benefits between the parties. The other party (the responder) has no real power or influence, and therefore, in order to obtain a better position at the completion of negotiations, decides to provide a gift or concession or benefit to the proposer at the beginning of the negotiations.. Thus, the responder adopts a strategy of gift-giving to gain the “Trust” of the proposer. However, it must be noted here that this act of gifting or concession-giving may work both ways, meaning, the proposer may consider it and provide a better end-position, or it may neglect it and decide the benefit-sharing as in the case of a Dictatorship.

Illustration:

Company A, the holding company, would like to enter into a Technology Transfer Agreement with its subsidiary, company B. During the course of negotiations, company B wants to transfer only the ownership, but not the possession of the technology, and has a hard stand on it. Company A is looking at a complete transfer of all rights, including the possession. 

The negotiators for company B understand company A’s position and intention. To ensure that they do not end up losing the entire technology, they come to a solution – transfer all rights to company A, and enter into a separate agreement to be the exclusive service provider for all company A’s products using the technology. They set the proposal of handing over all rights to company A at the beginning of the negotiations itself, and as part of ongoing discussions, set the proposal for the exclusive service provider, to which Company A’s negotiators agreed. The negotiations result in a successful execution of the agreement. 

  1. PRISONER’S DILEMMA:

This is the most widely popular game in the business domain, and also the most difficult to anticipate and prepare for. The Prisoner’s Dilemma is a game where both parties arrive at an agreement and promise each other to do their part, but when the time for implementation arises, either parties decide, at that moment, whether to honor the agreement or not to.

The name “Prisoner’s Dilemma” comes from a story that Albert Tucker, a researcher at Stanford University, reported in the Philadelphia Inquirer in 1995. The story is of two burglars who are arrested and questioned in separate interrogation rooms by the Police in an attempt to get a confession out of them. Both burglars have agreed to never reveal their crime.  In the interrogation room,  each of them is informed that the first person to confess would obtain a huge concession in the quantum of punishment, but if they do not agree, they would  face the full force of the law. Further, each of them is instilled with  a fear that the other burglar may turn against him at any moment. Now, each prisoner is stuck between whether to confess or not to.

This situation results in the following possible outcomes:

  1. Neither prisoner confesses. Thus, both of them may be charged with petty crimes or completely exonerated from all charges.
  2. Both prisoners confess and implicate each other. In such cases, both parties are charged under all applicable provisions, without any relaxation to either of them.
  3. One of the prisoners confess, implicating the other, but the other one does not. In such cases, the one confessing would be exonerated from all charges, while the one not confessing would face higher levels of charges, and in effect, more punishment.

This technique is widely used in international agreements, including resource utilization (water-sharing agreements, fishing quota agreements, etc.), border dispute resolution agreements, environmental protection & management agreements, and nuclear energy contracts.

  1. STAG HUNT:

Stag hunt, which talks about the conflict between self-sufficiency and social cooperation, is another widely-used game in contract negotiations. 

The game talks about two hunters who go out into the forest, with chances of being able to hunt either for a hare or a stag. The hunter, on his own, can hunt for only a hare, since a stag is huge and difficult to hunt alone. While the hare is a smaller animal, providing lesser utility, he can enjoy it fully and safely without having to share anything with the other hunter. However, if both hunters work together, they would be able to hunt the stag and share the benefits. If one hunter hunts the stag(which is a bigger animal with more utility) with the other, he would have to share it with him, and each hunter would face the possibility of getting either lesser or greater than he had intended. 

Illustration:

Company A, a manufacturer of paper, would like to enter into a Material Purchase Agreement with its subsidiary, company B, which procures and processes virgin wood. Due to the nature of the separate entities, there are inefficiencies in the process of both companies, such as delay in procurement, higher administrative and management costs, logistic challenges, and so on.

To mitigate the inefficiencies, both companies decide to merge into a single entity, and thus, enter into a Merger Agreement, which would be a win-win for both entities.

In contract negotiations, the game of stag hunt is widely attributable in the Mergers & Acquisitions domain. Enterprises enter into strategic purchase, mergers, acquisitions, joint ventures, partnerships, and associations primarily to achieve “synergy” (the “stag” in the hunter’s example) through mutual cooperation and understanding. This would enable both entities to benefit greater from the association than each of them as individual entities. Collaboration is a key element in the Stag Hunt game. Both parties should be willing to work closely with one another in the spirit of positivity, with the aim of gaining and sharing the benefits mutually. Negotiations are much more encouraging and enterprising when this strategy is adopted. 

Conclusion

Thus, game theory plays a pivotal role in the process of contract negotiation. Using the concepts from game theory, negotiators can effectively anticipate the other party’s choices, alternatives, probabilities of choosing one alternative over the other, and make suitable strategic decisions to suit the needs of negotiations. Each game has its own benefits and shortcomings, and when negotiators carefully choose the right strategy, it can lead to successful negotiations. 

References

  1. https://simple.m.wikipedia.org/wiki/Game_theory#:~:text=Game%20theory%20is%20the%20study,rational%20decision%2Dmakers%22.)&text=This%20is%20true%20even%20of,only%20affect%20that%20one%20person.
  1. https://www.koganpage.com/article/using-game-theory-to-claim-advantage-in-negotiations

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All you need to know about working as an in-house counsel with a heavy IPR focus

By
Diganth Raj Sehgal
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0

This article is written by Ms Kishita Gupta from Unitedworld School of Law, Karnavati University, Gandhinagar. In this, she has discussed various aspects that one should know about working as in-house counsel of a company focusing more on the IPR related issues.

Introduction

Companies across industries face a wide range of potential legal difficulties and hazards associated with intellectual property in today’s competitive innovation economy (IP). Intellectual property (IP) law is a rapidly expanding practice area that safeguards human mental inventions. These works could include patentable inventions as well as literary and creative works such as publications, plays, music, and artwork. They can also include product names, slogans, logos, and packaging, as well as trade secrets, symbols, names, images, and designs used in commerce. 

Lawyers who specialise in intellectual property advise their clients on how to create and protect intellectual capital. Patents, copyright, trademark law, licencing, franchising, distribution, technology transfers, and trade secret initiatives are all handled by most IP law firms. License ideas, transferring proprietary technologies, establishing licencing agreements, negotiating settlements, and doing IP asset due diligence are all things that intellectual property lawyers can help with.

There is a vast scope if someone wants to pursue their career in Intellectual Property Rights laws and one can read about it here. However, in this article, the author will be dealing specifically with the aspects that one needs to know about working as an intellectual property in-house counsel.

Even though most of the readers would already be aware of this but to have better clarity, let’s first understand what does the term “in house counsel” stands for? Simply put, an in-house lawyer is a company employee who also works as an attorney. Like any other employee, the in-house lawyer’s primary goal is to help the company meet its objectives. The in-house counsel acts in the capacity of an attorney and is therefore bound by the laws and regulations that regulate the practice of law.

Now let’s move on to the further discussions of the article.

Duties of an in-house counsel specialising in IPR

On a regular basis, in-house counsel in small legal departments with less than ten lawyers may be exposed to a practice that covers a wide variety of concerns. Whereas, lawyers at major in-house departments, on the other hand, are typically assigned to a single practise area within a certain practise group as in our case, Intellectual Property Rights related issues.

While much of the function of in-house counsel is to avoid litigation, it is not always possible. In House counsel must be prepared to oversee all legal matters, whether it is to safeguard the corporation’s rights or to defend it against claims. Counsel will frequently collaborate with outside law firm attorneys in preparing and defending the organisation against lawsuits. In-house counsel, on the other hand, is typically involved in all stages of litigation, from discovery to settlement negotiations and trial.

Some of the legal duties of an in-house counsel specialising in IPR are as follows:

  • Patent, trademark, trade secret, unfair competition, and copyright issues are handled by in-house counsel on both an offensive and defence basis.
  • IP in house counsel are responsible for formulating and driving strategy, including actively managing outside counsel, working with expert and internal witnesses, facilitating discovery, and establishing and managing budgets.
  • They are in charge of enforcing the client’s intellectual property rights against infringers around the world, reviewing the merits of possible claims and relevant business issues, and advising business units on whether and how to pursue potential claims.
  • They are responsible to provide guidance on possible trademark and/or IP licencing difficulties, as well as issues involving third-party engagements.
  • Additionally, they are responsible to educate key business groups and senior leadership on intellectual property issues, such as acquisition, claim avoidance, and risk mitigation in general.
  • They are a major partner with various levels of management within the company they are involved with and its affiliates as an IP in-house counsel. This position necessitates the ability to interact effectively with technology and business people at all levels, both verbally and in writing. This job works as a business advisor and counsellor on IP concerns.
  • They are required to keep a close eye on industry trends, legal and regulatory developments, and the competitive landscape to ensure that copyright and trade secret legal challenges are resolved. It’s expected that the mix and balance of these tasks would change as one gets specialised with the work they are doing.

Audit and valuation-related duty

Patents and other intellectual property assets are at the heart of many technology-related businesses and transactions. Licenses and assignments of intellectual property rights, as well as the use of these assets as loan collateral, are prevalent in the technology markets. Because knowing the economic value of patents is a vital aspect in defining their trading conditions, the financial valuation of intellectual property is becoming increasingly important.

It is important in many aspects of finance, including buying/selling, solvency, mergers and acquisitions, transactions, pricing and strategic reasons, financing securitization and collateralization, tax planning and compliance, and litigation support, to name a few. Furthermore, the valuation of intellectual property (IP) is regarded as one of the most critical management strategic challenges. Market share, entry obstacles, legal protection, IP profitability, industrial and economic considerations, growth estimates, remaining economic life, and new technologies are all aspects considered in this assessment.

The IP counsel’s role entails keeping track of a patent portfolio. A patent portfolio’s monetary benefits include a monopoly position in the market for the portfolio holder and revenue from licencing the intellectual property. Strategic advantages such as first-mover advantages and protection against competing portfolio holders are non-monetary benefits. The creation of a patent portfolio can also be utilised to entice investors. This position entails patent appraisal and analysis. This is done to determine which patents are most essential in terms of revenue or strategy.

Basic requirements for the job

Other than the qualification of an advocate along with a specialization in IPR(the specialisation is not mandatory but it is an additional advantage), some other basic requirements to become an IPR in-house counsel are as follows:

  • Ability to examine both design and utility patent invalidity and non-infringement concerns in response to infringement claims brought against the company, make recommendations, and carry out plans.
  • Ability to examine trademark protectability and non-infringement issues in response to infringement allegations made against the company, make recommendations, and carry out the strategy.
  • Ability to work closely and constructively with global colleagues in establishing case strategy and conducting technical analysis.
  • Ability and expertise in all parts of intellectual property due diligence, including analysing IP portfolios, negotiating licencing and/or settlement agreements, and different forms of technology partnership agreements.
  • Must accrue knowledge of invention process, state-of-the-art technologies in technologies relevant to the company and its affiliates’ business.

Pros and cons attached to the job

Pros Cons 
Generally close to the decision-making process.Sometimes the salary base might be less than a litigation or law firm job.
The work environment is more sophisticated than general practiceThe exposure is sometimes constrained.
The working hours are comparatively regulated and hence there exists a work-life balance also.The career states are tied to the fortune of the company.
By working specifically in IPR practise, one attains expertise in the subject matter.As an IPR in house counsel, one is restricted to work in the IPR field only and exposure to varied fields of laws are not attained.
One also gets to deal with high profile matters and may also receive global exposure sometimes.
As an IPR in house counsel, one gets to experience litigation as well as the corporate culture at the same time.

Conclusion

Thus, as discussed above, becoming an in-house counsel focusing highly on IPR can prove to be a great career opportunity for anyone who has an interest in Intellectual Property Rights and related aspects. If you want to know more about this career opportunity and related aspects of IPR, then Lawsikho is organising a Bootcamp for you all from 13th – 15th November 2021. In order to register for the Bootcamp, click here.

References

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How to write good data retention policies

By
Abanti Bose
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0
Data framework

This article has been written by Rishabh Mishra, pursuing the Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Introduction

The word “data” needs no introduction as these are basically information that is gathered by an organization for their needs and wants. Data that is gathered by an organization whether it is a business or government entity or any other entity, it is gathered for a specific reason and for the purpose of the organization these data are required to be retained. Here comes the biggest question with respect to usage of retained data and this is where organizations need to prove their credibility by stating their usage and rights of the person whose data has been gathered. This trust is created by organizations through their data retention policy which has to be bestowed with all good qualities keeping in mind their needs and wants. Another aspect that needs to be looked into is that organizations must make sure their data retention policy is not infringing any privacy laws. These are the two broad aspects that need to be looked into while framing a good data retention policy, both these aspects are discussed further in this article while primarily understanding the meaning of data retention and the need for data retention by the entities.

What is data retention policy?

The word data retention is made up of two words, first is data which means information and the other word is retention which means the continued possession, use or control of something. Both words together mean “the continued possession, use or control of information” is data retention. We have one more word which is associated with “data retention” herein is “policy”. All these three words together means that an entity’s established protocol for keeping records for a set period of time. Data retention policy is also known as records retention policy or backup retention policy. 

Broadly a data retention policy is required by companies or other entities for data security and to fulfill the needs of business and legal regulatory compliances. Below are some of the important needs for which data retention policy is required by entities, as follows:

  1. Regular Backups and Archiving—backups and archiving of data is required for unexpected events such as loss of data by hacking or system failure etc. a data retention policy helps to identify data which are required to be archived for the needs of the organization. Identification of data is important to avoid backup of too much data which may create confusion.
  2. Streamlined Data Management—data retained by an entity must classify the data according to its type, need, storage period, relevance and any other head as per the requirement of the entity. Here the policy plays a role of segregator by segregating duplicate and outdated data from useful and relevant data. 
  3. Legal and Regulatory Compliance—entities cannot collect data as per their whims and fancies they have to work under a particular legal framework and data retention policy is basically an introduction of its compliance with the legal and regulatory framework. A whole policy is required to meet the needs of the legal and regulatory framework, in case otherwise and accordingly framed. In case otherwise the entity will be subject to unnecessary attention like we have seen in the case of “Twitter” in India in the recent past.
  4. Meet Business Needs—collection of data and its retention from the prospect of an entity is useful and relevant when it meets the needs and wants of a business. As earlier discussed, a data retention policy is an introductory of its compliance of legal and regulatory framework similarly it is also an introductory of its business requirements. Thus, it must mention the credentials of data such as its details of required information, need, usage etc.

Things to be kept in mind while framing data retention policies

Based on the above definition, needs and wants of collection of data and its usage for the furtherance of affairs of an entity the following points must be answered in “Data Retention Policy”:

  1. What data needs to be retained—here the policy must show the segregation of relevant and useful data from the data which is collected from data subjects. 
  2. The format in which it should be kept—it clarifies the data owner how its data is kept with an entity and in which format i.e. physical or digital.
  3. How long it should be stored for—retention period must be mentioned in the policy with a proper justification for the longevity of the period. Different retention periods for different data must also be mentioned.
  4. Whether it should eventually be archived or deleted—the policy must mention the data which shall be archived and its reason thereof. In case, the data is deleted the policy must answer when and how it shall be deleted. The policy must also mention the procedure to be adopted for deletion of data at the instance of data owner and lastly, data archived even after deletion for statutory requirement.
  5. Who has the authority to dispose of it—the policy must clearly mention the final authority who has power to dispose of data as it helps the data owner to approach the appropriate authority of the organisation for its requests.
  6. What procedure to follow in the event of a policy violation—a mechanism plays a vital role in satisfying grievance as it is a roadmap for an aggrieved person. Thus, in the event of policy violation at the instance of an organisation or any other person a procedure or grievance redressal mechanism in the policy must be there for resolving the issues raised by the aggrieved person.

The above are the basic points that need to be answered while framing the data retention policy. All these points are interconnected as in order to determine appropriate data which is required to be retained all these points need to be read conjointly. A conjoint reading of the above points helps to understand the framework of an entity procedurally with respect to data retention and this procedure must be reflected in the data retention policy. In other words, if we see the procedure it explains its main steps in the following manner:

  • Identify the data.
  • Define the purpose of data collection.
  • Classify the data.
  • Period of retention.
  • Grievance redressal mechanism.
  • Archiving or deletion.

The above procedure must also fulfil the legal and regulatory requirements of concerned laws. While considering the compliance with legal and regulatory requirements the entity must identify the jurisdictional issue involved in their business at the first instance. It must be borne in mind that clarity on jurisdictional issues is a basic requirement for compliance with any law. In order to identify legal requirements following points must be checked:

  1. Operation of affairs—the entity must identify its operation is global, local or regional.
  2. Physical Presence—the physical presence of business like its offices or other physical establishments.
  3. Applicable laws—after identifying the place of operations and physical presence then the entity must identify applicable laws.
  4. Conflict of laws—for instance, the operation of affairs of an entity is global and the GDPR law of UK is in conflict in with the Cyber law i.e Information Technology Act, 2000 in India, then in this policy must firstly try to take mid-way to solve the issue and in case it is not possible they should clearly mention which part of their policy is applicable in India and which is not.

Another important aspect while understanding the legal and regulatory framework is that principles of law are not uniform in nature and there is a huge possibility that one has to make exceptions to be in accordance with laws. A legal aspect has to be framed in such a way that it complies with all the laws under which an entity is regulating.

Keeping in mind the usage and legal aspect the person should focus on writing the transparent policy as it is a matter of privacy in data collection because the more transparency the fewer the conflicts. Transparency in the collection of data is a must.

Conclusion

The basic minimum requirement for writing a good “Data Retention Policy” is very much clear from the above discussion. The suggestions made above may be applied as it is to every entity whether government or business entity. There are various operations that governments perform beyond their lands for which they retain data of individuals or other entities and accordingly they may also be required to comply with the requirements of such concerned jurisdiction unless they are specifically exempted, thus, in this situation, even government entities may have to comply with the requirements of law of the land of such country. It is also clear from the above discussion that framing of “Data Retention Policy” completely depends upon legal and regulatory requirements, it does not matter how much a good usage aspect of a policy is framed, the legal aspect of policy needs to be given priority at all costs. 

Before framing a policy one has to identify the usage of data, then legal aspects associated with it and lastly one has to shape the usage to fit it in the legal framework. This exercise gives the outline for the framework of the policy. After noting down the framework a person must conspicuously mention each and every point in policy which shall necessarily include data’s collection, usage and retention period along with different procedures with respect to data’s retention, destruction, archival and exceptions. Moreover, a person must also keep in mind that it should not focus on framing a uniform policy for all its needs, he must segregate the collected data and accordingly frame different policies for different data.

References

  1. https://www.legalserviceindia.com/article/l428-Data-Retention-Policies.html
  2. https://reciprocity.com/resources/what-is-a-data-retention-policy/
  3. https://www.intradyn.com/data-retention-policy/
  4. https://kirkpatrickprice.com/blog/best-practices-for-data-retention/
  5. https://spanning.com/blog/data-retention-policy-what-it-is-how-to-create-one/
  6. https://www.itgovernance.co.uk/blog/top-tips-for-data-retention-under-the-gdpr
  7. https://www.druva.com/glossary/what-is-a-data-retention-policy-definition-and-related-faqs/
  8. https://ciso.economictimes.indiatimes.com/news/twitter-admits-data-breach-asks-india-users-to-change-password/72928535

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

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

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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How to qualify as an attorney in the US or the UK

By
Diganth Raj Sehgal
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0

This article is written by Nidhi Bajaj from Guru Nanak Dev University, Punjab. The article aims at elucidating the process of becoming a lawyer in the UK and the US. 

Introduction

Law is a highly competitive and challenging profession. But it is very rewarding as well. Indian lawyers often dream of practising in the States and countries like London. But is that dream too far-fetched? Well, this article will help you to find that out, so keep reading till the end. In this article, I will take you through the journey of becoming a lawyer in the US and the UK including how an Indian lawyer/foreign-trained lawyer or a student with an Indian/ overseas degree can fulfill his dream of practising in the US or the UK.

UK

Becoming a lawyer in the UK is a tough row to hoe. It involves a bunch of steps from completing a university degree to undergoing years of training. The UK includes four countries i.e. England, Scotland, Wales and Northern Ireland. Scotland and Northern Ireland have their own separate procedures and legal systems. In this article, I will be primarily focusing on England and Wales as they have shared legal jurisdiction and courts. 

Solicitors and barristers

The legal profession in the UK is divided into two branches, solicitors and barristers.

Solicitors are lawyers who give legal advice to a client outside of court. In addition to giving legal advice, their work also includes preparing case bundles, legal documents, contracts and research etc. 

Whereas a barrister is a lawyer specialising in advocacy and litigation who represents, defends and advocates for a client in court. They are usually hired by solicitors to represent a client in court. A significant portion of the barristers in the UK are self-employed while others work in government departments or agencies including the Government Legal Service (GLS) and Crown Prosecution Service (CPS).

Becoming a solicitor in the UK : University route

Qualifying as a lawyer in the UK through the university route involves the following steps:

  • Step I- Getting a law degree (LLB).
  • Step II- Taking an SQE preparation course (This is only for those who have studied an unrelated subject at the undergraduate level).
  • Step III- Sitting the Solicitors Qualifying Examination (SQE).
  • Step IV- Completing 2 years of qualifying legal experience which can include a training contract.
  • Step V- Passing the Solicitors Regulation Authority (SRA) character and suitability requirements.

What is Solicitors Qualifying Examination (SEQ)

For qualifying as a solicitor, it is mandatory to pass the SQE (Solicitors Qualifying Examination) irrespective of the route you choose (university route or apprenticeship route) or whether you have completed your law degree from the UK itself or have an overseas law degree or are a lawyer from overseas aiming to practise in the UK. SQE has replaced the Graduate Diploma in Law (GDL) and Legal Practice Course (LPC) with effect from September 2021.

Before September 2021, becoming a solicitor in the UK involved the following stages:

  • Qualifying a Law degree or Graduate Diploma in Law (GDL);
  • Legal Practice Course (LPC);
  • Professional Skills Course;
  • Training Contract;
  • Satisfactory Character and suitability.

Now, with the introduction of SQE, the whole system is about to undergo a major change as both GDL and LPC have been done away with. Greater uniformity and consistency is expected with the introduction of this standardised exam for qualifying as a solicitor.

Steps to qualify as a solicitor through the SQE route

  1. The very first step is completing your law degree or an equivalent qualification, or gaining equivalent experience.
  2. You must have the requisite legal knowledge to pass the SQE (this can be achieved by taking an LLB or an SQE Preparation Course).
  3. The next step is passing SQE stage 1 and stage 2.  
  4. This stage involves getting practical legal work experience. You need to have at least two years of qualifying legal work experience. 
  5. And the last step is applying for admission to the roll of solicitors.

What does the SQE exam involve

The SQE Exam is divided into two parts:

SQE 1

Part I involves a series of computer-based examinations aimed at testing a candidate’s ability to use and apply legal knowledge. You get three attempts (taken within six years) to pass the exam. Proposed exam topics for SQE 1 include topics such as professional conduct, property law and practice, public and administrative law, legal systems of England and Wales, criminal law and practice, commercial and corporate law and practice, wills and the administration of estates and trusts.

Work-Based Learning

Between SQE 1 and SQE 2, there is one more stage called work-based learning. Candidates are required to undergo a period of ‘work-based learning’ in a law firm or SRA approved organisation. It may include working as a paralegal or in a student law clinic etc. The training goes on for 24 months, and at the end of the training, candidates are required to sit part two of the SQE. 

SQE 2

Part II of SQE includes a series of assessments to test the core legal skills of the candidates including client interviewing, case analysis, advocacy,  legal research, written advice and drafting. It takes place after the completion of work-based learning. A candidate can sit in SQE 2 only after passing stage 1. 

Becoming a Solicitor in the UK : apprenticeship route

Another way to enter the UK Bar is through legal apprenticeship. Legal apprenticeship involves working and studying concurrently. There are three types of legal apprenticeships, namely, solicitor apprenticeship, paralegal apprenticeship and chartered legal executive apprenticeship.

Solicitor Apprenticeship

Solicitor Apprenticeship is a six-year program that targets A-level graduates, chartered legal executives and paralegals. It is pertinent to mention that progression from one apprenticeship onto the next is also possible. For example, those undergoing a paralegal apprenticeship could progress onto the chartered legal executive or solicitor apprenticeship. The solicitor apprenticeship scheme covers all the contents of a law degree and enables the apprentices to get a law degree and an LLM. Along with completing the apprenticeship, you have to pass the SQE as well for qualifying as a solicitor. The SQE assessment will include two parts, stage 1 (on-programme assessment) and stage 2 (end-point assessment), which must be taken during the last six months of your apprenticeship.

What happens in a legal apprenticeship

A legal apprenticeship program involves a blend of:

  1. Work-based learning (Around 80%);
  2. Theoretical learning, online or offline (Around 20%).

Most of the time the apprentices work at the law firms and develop their legal skills and gain varied knowledge in different areas of law. This practical learning is often combined with theoretical learning, as every once a week, the apprentices are sent to an educational institution (that has partnered with the sponsoring firm) to learn the theoretical aspects of the law. The various tasks of an apprentice include drafting correspondence to clients, attending client meetings, negotiating and drafting contracts and other legal documents, researching, preparing for and attending court proceedings and proofreading legal documents etc.

The candidate is required to maintain an up to date portfolio of the tasks undertaken in the apprenticeship that will serve as evidence of his work experience. 

Eligibility for applying for a legal apprenticeship

The requirements for applying for a legal apprenticeship may vary according to the route you take or the firm providing apprenticeship but most firms expect applicants to have:

  • At least five GCSEs at grade A-C / 7-4 (including Maths and English);
  • Three A-levels at grade C and above, some firms expect as much as ABB etc.

Becoming a barrister in the UK

To become a barrister in the UK, you have to complete three stages of training:

  1. The academic component i.e. completion of law degree.
  2. Vocational component i.e. a Bar course, traditionally the Bar Professional Training Course (BPTC). BPTC is now replaced by the Vocational Component of Bar Training.
  3. Pupillage, also known as the work-based learning component.

On completion of all the training components, you can apply for tenancy as a self-employed barrister in chambers or choose to practice as an employed barrister.

The academic component

It is expected that the barristers have good knowledge of the legal system and law in England and Wales. The academic component of training includes completion of a law degree or a non-law degree and the Graduate Diploma in Law (GDL). Your degree needs to be a minimum of a 2:2. It is essential that your law degree covers the seven foundations of legal knowledge including Criminal Law, Law of the European Union, Equity and Trusts, Contract, Tort, Property Law and Public Law (Constitutional Law, Administrative Law and Human Rights Law).

The vocational component of Bar training

The vocational Component of Bar training is a postgraduate course aimed at preparing the candidate for pupillage and barrister practice. It is mandatory to pass this course for commencing pupillage or beginning tenancy in chambers. The course will teach you important subjects such as advocacy, criminal and civil litigation, sentencing, evidence and professional ethics. In addition to the core modules, you can choose to specialise in a particular area by opting for an elective module such as Company Law, Advanced Criminal Litigation, Family Law, Commercial Law, Employment Law etc.

Eligibility for applying for the vocational component of Bar training

One can apply for the vocational component of Bar training:

  1. If you have graduated with a qualifying law degree; or
  2. You have graduated with a non-law degree and completed the Graduate Diploma in Law (GDL)
  3. Passing the Bar Course Aptitude Test (BCAT) which tests your aptitude for critical thinking and reasoning
  4. Joining one of the four Inns of Court is essential before starting the vocational component. The Inns of Court are the professional associations for barristers in England and Wales. Your Inn will “Call” you to the Bar after you have successfully passed a Bar training course and completed ten “qualifying sessions” at your Inn.
  5. Being fluent in English.

What is pupillage

Pupillage refers to work-based practical training that a person has to undergo under the supervision of an experienced barrister, in order to be authorised to practice as a barrister. Those who are undergoing pupillage are called ‘pupils’. Pupillage is divided into two parts, a non-practising period, usually of six months, and a practising period, usually of six months. Pupils earn a minimum amount as fixed by the rules during the period of pupillage. For successful completion of the work-based learning, it is required that the supervising barrister confirms that the pupil has met the required standard, after which the candidate can apply for the first Practising Certificate. 

How to become a lawyer in the UK : for those having an overseas law degree 

Did you know that overseas law degrees are not recognised by the Solicitors Regulation Authority as qualifying law degrees? However, the traditional practice followed until now was that students having a full-time overseas degree in any subject including law were allowed entry in the Graduate Diploma in Law (GDL) or equivalent law conversion course after which they could either go for LPC ( for becoming a solicitor) or the vocational component of bar training( for becoming a barrister). However, from September 2021 GDL has been replaced by the SQE (Solicitors Qualifying Examination). 

How to become a lawyer in the UK : for those already practising in their home countries

Until September 2021, a person who is practising law in his home country could qualify for practising in the UK under the Qualified Lawyers Transfer Scheme (QLTS). But now the QLTS has been replaced by SQE and an Indian lawyer who wishes to practice in the UK has to pass the Solicitors Qualifying Examination. 

How long does it take to become a lawyer in the UK

Qualifying as a solicitor in the UK can take up to 5 or 6 years if you study full time. This includes a 3-year law degree, SQE and 2 years of legal experience. Becoming a barrister in the UK takes five years, including three years for your law degree, one year for a Bar course and a one-year pupillage in chambers. 

However, qualifying as a lawyer in the UK may take a longer period in case you have a non-law degree and you have to take an SQE Prep Course before sitting the exams.

Skills needed to become a good lawyer in the UK

  • Verbal and written reasoning skills;
  • Ability to interpret complex material and information;
  • Inductive and deductive reasoning abilities;
  • Ability to analyse information and draw conclusions.

USA

Becoming a lawyer in the US requires years of strenuous efforts and payment of hefty law school fees. But before getting into the question of how one can become a lawyer in the US, let us first know about the key skills that you must have to become a good lawyer in the US. These skills are given as follows:

  • How to apply the law to the facts of each case;
  • Good vocabulary;
  • Ability to understand complex written material;
  • Ability to write clearly and concisely;
  • Sound reasoning skills;
  • Good memory;
  • Good listening skills;
  • Good communication skills;
  • Good analytical skills;
  • Research and problem-solving abilities.

Becoming a lawyer in the US

The common route to becoming a lawyer in the US involves the following stages:

Step 1: Completing a Bachelor’s degree

If you want to get into a good law school, performing well in your undergrad degree is very important. You may choose to major in any subject that will help you prepare for law school. There is no requirement of taking a specific subject in college but taking a subject you enjoy will surely work in your favour in the long run.

Step 2: Appearing for LSAT

The next step is taking the LSATs i.e. Law School Admission Test. It is the exam that will get you into law school. The test is offered 4 times a year and will assess your reading and verbal reasoning skills. Your LSAT score along with certain other considerations determines the fate of your law school application. 

Step 3: Getting into law school

The next step is earning a Juris Doctor (JD) degree (usually of 3 years) from a law school accredited by the American Bar Association. Keep in mind that you will be shortlisted based not only on your GPAs and LSAT scores but also on your personal statement, recommendation letters and resume. 

General requirements for application:

  • A bachelor’s degree or it’s equivalent (4-year university degree) in any subject;
  • Registering for the Law School Data Assembly Service (LSDAS);
  • Submitting LSAT scores;
  • Recommendations;
  • TOEFL scores if English is not your native language;
  • Financial documents showing proof of funds.

Step 4: Sitting the Bar Exam

The last and the most difficult step is passing the bar exam. Most states in the US have their own bar exam. However, some states might have adopted the Uniform Bar Exam. Also, some states such as Arizona, Oregon allow law students to sit the bar exams before their graduation, while in some states such as Kentucky you cannot give the bar exam before completing your law degree. So, it is very important to check the rules and other procedural details of the State where you want to practise. To help you with your preparation, you can also enrol in a bar prep or bar review course.

Becoming a lawyer in the USA : Indian students or Indian lawyers/Foreign-trained lawyers

An Indian lawyer practising in the US seems like a long shot, but with hard work, dedication and a pinch of smartness it is not impossible to achieve this.

The Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law state that the lawyers qualifying from a common law country and having more than 2 years of experience can submit their law degree for analysis and review. If it is successful, then they are not required to sit the bar exam.

Another way of practising in the US for an Indian student is through the LLM route. You can pursue an LLM degree before being eligible to take the bar exam. If you pass the bar exam, you will be allowed to practise in the US. 

However, the requirements of each state in the US may vary for sitting the bar exam. Most states do require a JD to sit the bar exam but some states will allow you to give the bar exam without earning a JD degree. Let us analyse the position in some of the US states:

California

In California, a foreign-trained lawyer who has been admitted to practise outside the US is eligible to give the Bar exam without any additional requirements. And a foreign-trained lawyer who has not been admitted to practice outside the US can become eligible for taking the bar exam after completion of an LLM in the US. The program must cover four separate subjects that are tested on the California Bar Exam including the American Bar Association (ABA) Model Rules of Professional Conduct, Professional Responsibility course that covers the California Business and Professions Code and leading relevant federal and state case law. There is also a provision for an additional 1 year of schooling in a law school accredited by the American Bar Association. The year shall be focused on the subject material of bar examination.

New York

A foreign-trained lawyer who has completed a 3-year program focused on English common law is allowed to sit the New York bar exam after receiving an Advance Evaluation of Eligibility from the Board. All other foreign-trained lawyers have to complete an LLM program that should meet certain qualifications before they can give the bar exam.

Other states

There are 34 other jurisdictions where there is scope for a foreign-trained lawyer to enter a state’s bar. However, all these states have varying rules. In most cases, your foreign law degree has to be reviewed and approved by the American Bar Association. This process can take about 1 year or even more than that. Also, you need to fulfill the requirements of the state whose bar exam you want to give.

Washington 

In Washington, the law school that you choose for your LLM degree has to be approved by the Board of Governors. The LLM degree must include at least 12,000 minutes on the principles of U.S. domestic law and 18,200 minutes of instruction.

Wisconsin 

This state allows foreign-trained students having LLM degrees to give the bar exam. This degree must include at least 700 minutes of instruction per semester credit hour. The degree must be completed in a minimum of two 13-week semesters.

Vermont

Vermont is the only state that has given recognition to foreign law degrees with some sort of regularity. The state has an apprenticeship program in place to assist foreign-trained attorneys in preparing for its bar exam.

Apart from the above-mentioned requirements, there are certain other state-specific requirements to be fulfilled by a foreign-trained lawyer to qualify as an attorney in the US such as taking the MPRE (Multistate Professional Responsibility Examination) and passing the fitness and character requirements for the state’s bar exam. Thus, you are advised to duly check the various requirements and other details on the state-specific bar exam website.

Conclusion

In addition to good academic grades, what makes you stand out as a lawyer is your practical legal experience and your abilities. Thus, your law firm internships, research experience or experience gained while working in a legal aid clinic also plays an important role in your journey to being a good lawyer. If you want to become a lawyer in the UK, you should know that the earlier framework of GDL and LPC has been replaced by the Solicitors Qualifying Examination and it is mandatory to pass this exam in order to qualify as a lawyer in the UK. However, there is a transition period allowed for those already undertaking a law degree or already enrolled in either the GDL or LPC to continue to completion. Whereas, if you are aiming to practice in the USA, you have to be very particular about the state in which you wish to practice and do proper research as to the favourable aspects and difficulties that the state-specific requirements may pose for you. 

References

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How strikes and lockouts considered as weapons of collective bargaining : limitations on managerial prerogatives

By
Abanti Bose
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0
Image Source: https://bit.ly/2TMfxHS

This article is written by Rahul Manglani, pursuing Diploma in Labour, Employment and Industrial Laws (including POSH) for HR Managers from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Introduction

Collective bargaining is a mechanism through which employers (organizations) and trade unions can agree on fair compensation and working conditions. It is also a base for establishing appropriate labour relations. Strike is a vital part of the collective bargaining process because it evaluates the economic bargaining power of each party involved and compels both parties to understand, realise, and evaluate the necessity it has for each other’s contribution. As the strike continues, both the parties bear losses- the savings of the employees involved in the strike continue to reduce, while the organization also bears huge losses due to the stoppage of production which affects the bottom line. Lockout is exactly the opposite of strike. Strike is a weapon that is in the hands of the workers to force the employer to agree on their demands. Similarly, a lockout is a weapon in the hands of the management to compel the workers to further negotiate on their demands relating to the conditions of employment, in the favour of the employer. 

What is a strike?

A strike is a stoppage of work initiated by the refusal of most workers to perform their work. A strike is usually a consequence that happens due to grievances that are not addressed by the employer on a timely basis.

Strikes became a popular phenomenon at the time of the Industrial Revolution when mass workers became vital in factories and mines. In most nations, strike actions were quickly made illegal, as employers comparatively had more political power than the employees.
The right to strike by employees or workers is a well-recognised tool that is available to workers to negotiate with the employer and force the employer to agree on their demands. In our daily lives, very frequently we see news regarding workers going on strikes so that their demands in regards to their wages, benefits and working conditions are accepted by their employer.

The most important ingredients of a strike

The strike must be in an establishment that falls under the definition of “industry” as specified in the Industrial Disputes Act, 1947.

There should be a relation of employer-employee between the employer and the striking workmen.

There should be a stoppage of work by the workmen.

Types of strikes

Following are some of the different types of strikes:

  1. A general strike is a type of strike where the workers join together for a common reason or demand and keep themselves from work, depriving the employer of their workers to carry on their business operations. 
  2. A “token strike”, which is for a shorter period, for example for a few hours, and its main aim is to draw the attention of the Management by showing cooperation among the workers, and it is generally before the general strike.

Why do workmen strike?

Most strikes are undertaken by workers’ unions at the time of collective bargaining. The main aim of collective bargaining is to obtain an agreement between the workers’ union and the employer on the terms and conditions of employment. 

Sometimes, workmen decide to strike without the intervention or approval of a workers’ union. This happens either because the workers’ union refuses to support the reason for a strike as it seems invalid, or the workers who are initiating a strike are not a part of a workers’ union. Such strikes are usually considered unofficial.

Strikes initiated without obtaining official approval of the workers’ union are also known as wildcat strikes. In many nations, wildcat strikes are not considered legal and may lead to fines or penalties for the union members who engage themselves in such types of strikes.

What happens during a strike?

A strike may consist of the workmen who refuse to come to work or march outside the factory or office premises to prohibit other workmen from working or conducting any business with the employer.

It rarely happens that workers will leave the workplace, but will not agree to do their work or to leave the workplace. This is called a sit-down strike.

Significant case laws 

In the case of TISCO Ltd vs Workmen, the verdict was that if the employer replaces the weekly day-off Sunday with another day-off without notifying the workmen in advance then such change will not be considered as a legal change. Therefore, the refusal of workmen to work on the day-off which was not a Sunday did not amount to strike.

In the case of North Brook Jute Co. Ltd. vs Workmen, the verdict was that when a scheme was introduced in contradiction to Section 33 of the Industrial disputes Act, 1947 then the refusal to act according to that scheme would not be considered as a strike.

In the case of Punjab National Bank vs All India Punjab National Bank Employees’ Federation, the verdict was that a pen-down strike would be considered as a strike because here the workers do enter the work or office premises but do not agree to perform their work.
In the case of T.K. Rangarajan vs Government of Tamil Nadu, the verdict was that the right to strike is not a fundamental right. In addition, it is also neither legal nor a statutory right. A similar thing was recognised in the case of B.R. Singh vs Union of India.

What methodologies do companies utilize to deal with a strike?

Most strikes declared by workers’ unions are usually predicted; as they usually take place after the employment contract has expired.
Preparation to deal with a Strike: Companies or Factories which manufacture goods for sale will frequently increase the level of their inventories before a strike takes place. Salaried workmen may be called upon to take the place of workmen who have engaged in strike, which may require them to take training in advance. If the organization has multiple work locations, workmen may be redeployed to meet the business needs of the decreased workmen.

Organizations may also take out strike insurance before an expected strike, which may help to cover the losses which would cause because of the strike.

One of the weapons utilized by the worker’s unions is the strike action. Some organizations may refuse entirely to negotiate with the workers’ union and may respond to the strike by hiring workmen in replacement of the striking workmen. This may create a difficult situation for strikers as they need to take a call if they have to stick to their original plan, or if there is a possibility that the strike may be lost? Strikers might also wonder how long will the strike last? Will their employment still be there if the strike fails?
Organizations that engage the services of strikebreakers usually take advantage of these anxieties among strikers when they attempt to convince them to end the strike.

Another remedy to a strike is a lockout, which is a way of work stoppage in which an employer (organization) does not allow workmen to continue their work.

What is a lockout?

Lockout is the opposite of a strike. Strike is a tool in the hands of the workmen to compel the management to agree to their demands. Similarly, lockout is a tool in the hands of the management to force the workmen to further negotiate on their demands which are related to the terms and conditions of the workers’ employment.
As per the Industrial Disputes Act, 1947, Lock-out means the temporary closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him.

This definition consists of the following three components of a lockout:

  1. Temporary closing of a place of employment; or
  2. Suspension of work, or
  3. Refusal to continue to employ any number of persons employed by the employer.

When a lockout takes place, the workers are asked by the management to stay away from work, and therefore, they are not obliged to attend work.

Case laws

In the case of Shri Ramchandra Spinning Mills vs State of Madras, it was seen that if the employer closes his place of business as a means of reprisal or as an instrument of coercion or as a mode of exerting pressure on employees or generally speaking when his act is what may be called an act of belligerency there will be a lock-out.
In the case of Lord Krishna Sugar Mills Limited Saharanpur vs State of UP, the verdict was that a lock-out may sometimes be not at all connected with economic demands; it may be resorted to as a security measure.
In the case of Lakshmi Devi Sugar Mills Limited vs Ram Sarup, the verdict was that in the case of lockout there is neither alteration to the prejudice of workmen of the conditions of the service application to them nor a discharge or punishment whether by dismissal or otherwise.

Conclusion

Thus, we can conclude that Strikes and Lockouts are effective weapons for both employers and employees who are engaged in the process of Collective Bargaining, provided that such weapons are utilized lawfully and ethically. 

India in the present context of economic development programs cannot afford the unqualified right to the workers to strike or to the employer to lock-out. Compulsory arbitration as an alternative to collective bargaining has come to stay. The adoption of compulsory arbitration does not, however, necessarily mean denial of the right to strike or stifling of the trade union movement. If the benefits of legislation, settlements and awards are to reach the individual worker, not only the trade union movement has to be encouraged and its outlook broadened but the laws have also been suitably tailored.
The existing legislation and judicial pronouncements lack the breadth of vision. Indeed, the statutory definitions of strike and lock-out have been rendered worse by a system of interpretation that is devoid of a policy-oriented approach and which lays undue stress on semantics.

References

  1. https://www.ilo.org/
    https://www.legalbites.in/strikes-and-lockouts/
  2. https://aflcio.org/what-unions-do/empower-workers/collective-bargaining
  3. https://www.nlrb.gov/strikes
  4. https://www.whatishumanresource.com/lockouts
  5. https://www.lawctopus.com/academike/industry-under-industrial-disputes-act-1947/#:~:text=Sec.,occupation%20or%20avocation%20of%20workmen%E2%80%9D.
  6. https://www.britannica.com/topic/general-strike
  7. https://www.ijmh.org/wp-content/uploads/papers/v4i1/A0363094119.pdf
  8. https://www.crf-usa.org/bill-of-rights-in-action/bria-1-4-a-sit-down-strike.html
  9. https://indiankanoon.org/doc/1973374/
  10. https://indiankanoon.org/doc/716916/
  11. https://indiankanoon.org/doc/1137496/
  12. https://indiankanoon.org/doc/68424002/

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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Death in CPC : how does it figure, facilitate and frustrate the litigative process

By
Abanti Bose
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0
Image source - https://bit.ly/3EWRHwF

This article is written by Raunak Sood, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Introduction

The death of a party to a suit is one of the major causes that leads to the pendency of the suit. Order-XXII of CPC mentions what is to be done in such a scenario. Due to the death of a party, generally, the suit or the proceedings are interrupted after the institution of the suit and before the judgement or the decree has been pronounced. And after the death of the party, the most important question that arises is, whether the right to survive or not. The continuation of the suit depends on the fact that, if the right to sue survives then the suit can be continued but if it does not survive then the suit cannot be continued further. And the general principle followed by the Code is that because of death one party to the suit shall not come to an end. Order-XXII Rule 1-6, 9 and 10A of CPC deals with provisions related to the death of a party during the pendency of a suit.

Now, the question that arises is what will happen in case of the death of one of the parties to the suit and what is the procedure with regards to it? The procedure and the answer to this question are given under Order-XXII of CPC. And to answer the above question it depends upon the survival of the Right to sue.

The first rule tells us that in case of death one party to a suit where there are co-plaintiffs or co-defendants and the right to sue survives. In case, where such right survives in respect of the other plaintiff then the court shall proceed with the suit. And in cases where one of the defendants to the suit has died but the right to sue has survived in respect of the other defendants then also the court shall proceed with the suit. The problem arises with regards to the continuation of the suit when no right to sue survives and this has been discussed in the chapters below in this paper. In this article, all such scenarios have been discussed. Also, the nature of the right to sue in the context of the death of a party in a suit and the procedures with regards to that have been mentioned.

Illustration

Now, suppose that ‘X’ is a Police Officer working in the state of Madhya Pradesh and while doing his duty he died. ‘Z’, who is X’s wife, is not entitled to receive the gratuity amount from ‘Y’ as her husband died on duty. But she was refused to be entitled to that amount. So, ‘Z’ filed a suit against the officers and by a decree of the court, she got that amount. But during the pendency of the suit ‘Y’ was replaced by ‘Q’ hence, ‘Y’ did not have any such position and authority. And as per Order-I of CPC, no decree can be obtained against a party not being implemented as a necessary party which according to this is ‘Q’, but the decree was obtained as against ‘Y’. In this case scenario, the suit filed by ‘Z’ can be dismissed by the courts. But X’s wife has the option to substitute ‘Y’ with ‘Q’ as the defendant as per the provisions of Order-XXII, Rule 3 of CPC depending on the fact that whether the right to sue is surviving or not.

What happens when a party to a suit dies during the pendency of the suit?

Death of a party to a suit is a consequence which leads to the pendency of a suit provisions w.r.t it has been given under Rules 1-6, 9, 10A of Order-XXII (hereinafter referred to as, O.XXII) of the Code of 1908. The general principle followed is that the suit shall not come to an end because a party to that suit has died. Further, the proceedings are dependent upon the fact that whether the Right to Sue survives or not. If it does survive then the court can proceed with that case and the suit will not be abated but in a case where there is no such right surviving then in that scenario the courts cannot proceed and the suit will come to an end. 

‘Right to sue’ has not been defined under CPC as such but its meaning can be interpreted as ‘right to seek relief’. So, if the cause of action is still surviving then it can be said that the right to sue is also surviving. 

As per Order-XXII, Rule 1, a suit cannot be abated even if any of the parties to the suit dies while the suit is still pending if this Right to sue survives. And in a civil suit the principles of actio personalis moritur cum persona which means, that a personal action where relief is sought dies with the death of the person from whom such action was directly or intimately connected. Hence, in this case, the right to will does not survive with the representatives of the deceased. However,  this doctrine is not applicable to those cases where the right to sue has survived. Also, this doctrine is applicable to those situations where an appeal is pending before a court. A suit can be abated either as a whole or partially. In the case where the suit was found to be related to only torts, it will be dismissed as a whole but where some action was related to torts and the other were of civil nature then in that case the part containing the actions related to the civil matter will survive and the torts part will get dismissed.

Rule 2 of O.XXII of CPC talks about the procedure with regards to the death of one of the parties to the suit. Wherein if one of the parties to a suit dies but the right to survives in favour of the other parties be it with regards to the plaintiffs or defendants the court shall, in that case, take a record of such scenario and proceed with the case and this is done because the suit might be presented before various courts and can continue for years hence the record shall be maintained and track should be kept of that case. So, basically, this provision allows the courts to continue with the proceedings of the suit in the same manner even after the death of the party to the suit as it would have been before the death of that party.

Under Rule 3 of the O.XXII procedure with regards to the substitution of the parties has been described. Sub-clause (1) to this rule mentions that in a scenario wherein the sole plaintiff has died and the right to sue has survived then the legal representative of such party by an application to the court can be substituted and the suit can be continued further. Also, it mentions that where there are more than one plaintiff and because of the death of on such plaintiff the right to sue does not survive in respect of the other plaintiffs to the suit then in that case also the legal representative of the deceased can continue with suit by substituting the deceased but, an application has to be given to the courts for such issue. In sub-clause (2) the limitation period to make such application as prescribed in the provision is within 90 days of the death of such party be it the plaintiff or the defendant.

The parties can only be substituted only if the courts are of such view the legal representative has such authority to substitute the deceased party. But in cases where no application has been made or is barred by the law of limitation or the court has refused such application then in that case suit shall be abated and further the proceeding shall be stopped. And if the defendant files for the recovery of the cost of litigating the case then that can be adjusted from the assets of the deceased plaintiff.

With respect to Rule 4 the whole procedure is similar to that of substitution of the plaintiffs. Even the limitation period is the same as that of Rule 3 for making such an application for replacing the parties. But one thing to notice here is that this power is discretionary and the courts can allow the plaintiff to not substitute such a representative in a case where the court deems it fit where the deceased plaintiff forgot to file the ‘Written Statement’. And here the judgement can be decreed in favour of the plaintiff and will become binding on the representative of the deceased defendant.

Before the 1976 Amendment to CPC this substitution of parties was not allowed and after the amendment Rule 4A was added. Here if the deceased had no legal heir or representative then the court had only two options. First being that the remaining parties to the suit can file the application to proceed with the suit even after the absence of the deceased party to the suit. Second being, an administrator could be appointed by the courts who may represent the estate of the deceased party. But here that person shall not have an interest adverse to the deceased party.

In cases where the determination of the legal representative of the deceased party is not certain and there is a doubt w.r.t it then in that case the courts have the power to determine such representative.

According to Rule 9, if the suit has been dismissed then no fresh case can be brought for the same cause of action if the party to a suit dies and no right to sue survives then in that case neither a relief can be claimed, nor any legal action can be brought against that cause of action. In this case the suit will be abated. However,  to set aside such an order of abatement the legal representative of the plaintiff can make an application to the court to set aside such an order and can commence a fresh but bona fide intention should be shown and it should be reasonable. However,  this act is barred by the provision of Section.5 of the Limitation Act, 1963. 

Meaning, nature of right to sue and frustration of suit

O. XXII of Civil Procedure Code, 1908 is a provision of CPC which mainly envisages the devolution of interest during the pendency of a said suit, wherein it is pertinent to note that O. XXII  is procedural in nature and therefore it requires a liberal interpretation to meet the ends of justice, because it is settled law that procedural law cannot triumph over substantive law. It is to be noted that O. XXII does not apply to execution proceedings and writ proceedings, this being said it is hereby contended that devolution of interest may arise on grounds of death of a party to the suit.

When a party to the suit dies, the first question which needs to be determined is whether the right to sue survives in the said proceedings, if the answer is positive then the court may implement the legal representatives of the said deceased party and if the answer is negative, then there is an end to the suit. 

“Right to sue” which appears in O. XXII does not have a definite meaning assigned to it in the Code of Civil Procedure, 1908 but according to the dictum laid down by the Hon’ble Supreme Court in the case of Phool Rani v. Naubat Rai Ahluwalia, the “right to sue” can be construed to be interpreted as the “right to seek relief” albeit “right to sue” can be said to have survived on the ground of the survival of the cause of action. A common rule seen good in the eyes of law is that on the death of a party to the suit, the cause of action and the said rights of the aggrieved party survive and the legal representatives can pursue the suit on behalf of the deceased, but as per the scheme laid down in O XXII, CPC the maxim actio personalis moritur cum persona i.e. personal action dies with the person is applied herein to the concept of “right to sue” henceforth it can be said that wherein the relief is sought in a suit on grounds of violation of in personam rights, because these rights being connected with the individuality of the deceased will die on the death of the deceased. Therefore, it is concluded that “right to sue” will not survive on the death of a party if the pending suit was contended on grounds of in personam rights. 

An illustration wherein the “right to sue” does not survive is a suit of personal injuries or suit for damages sought on grounds of assault, malicious prosecution, breach of contract of betrothal, dissolution of marriage etc. On the other hand the “right to sue” survives if the suit instituted was not based on the violation of in personam rights but instead there was a violation of in rem rights wherein the right was claimed against a thing because the right is not personal in nature it is claimed with respect to immovable property or based on a right conferred by a statue with respect to a particular thing. An illustration to the said effect wherein the “right to sue” survives can be a suit instituted by a landlord seeking possession of the rented premises of the tenant, herein on the death of the landlord the “right to sue” survives and the court can substitute the legal heirs of the deceased landlord, similarly a suit for rendition of accounts against a trustee where a trustee died or a suit for partition of ancestral property by a coparcener after his death. In the above illustrations, the relief or right was against a thing and not personal in nature. 

Nature of “right to sue” can be said to be divided on the basis of the nature of right whose violation took place and henceforth the suit was instituted on the basis of the violation of that right, it can be concluded that if the right in rem is claimed in the suit then the suit does not get frustrated and the suit can be adjudicated upon by an impleadment of legal representatives of the deceased by an application within 90 days from the death of the deceased party. If in personam rights are claimed then upon the death of a party to the suit, the said suit gets frustrated because the right was personal in nature but the Supreme Court in the case of M. Veerappa v. Evelyn Sequeira that if the entire suit is based on personal claim or tort then the entire suit will abate but if the suit is partially based upon tort and partially on contract then that part based on an in rem right or the contract part of the suit will survive and there will be a partial abatement of the suit, not a full abatement. 

In the case of Melepurath Sankunni v. Thekittil Geopalankutty, the Hon’ble apex court iterated that wherein a suit for damages which was involving a personal claim, on the death of the plaintiff-appellant, the “right to sue” does not survive as a general rule but if the said suit was decreed on the death of the plaintiff, the interested legal representatives of the plaintiff may continue the suit in appeal because the question of law arising in such circumstances is detriment to the estate of the deceased plaintiff. Henceforth, on the corollary, it can be claimed as settled law that if a suit is dismissed on the death of a plaintiff, the “right to sue” does not survive and the suit may get abated or frustrated. 

Facilitation of suit and impleadment of legal representatives of deceased party to the suit 

When it comes to the impleadment of the legal representatives (hereinafter referred to as “LR”) of the deceased party, it will be conducive to review the scheme of O XXII, CPC, wherein O XXII R. 1 – 3, iterate that when a sole plaintiff dies, the suit can be continued by the legal representatives of the deceased sole plaintiff, where one of several plaintiffs dies and right to sue survives, the court may make an entry and proceed with the suit, also the court on the application of the legal representatives ( LR) of the deceased plaintiff may make them a party to the suit. When a sole defendant dies, provided that right to sue survives the suit shall not abate and when one of several defendants dies and the right to sue survives the court on application by legal representatives, will make them a party to the suit but if the application is not made within a period of 90 days the suit shall abate against the said defendant. The court upon its discretion may exempt a pro forma defendant from substituting an LR. If a plaintiff is not aware of the death of the defendant and does not make an application before the court for impleading the LR of the defendant within the time of limitation, the said suit shall be abated, but if the application is made within the 90 day period and in the application it is stated that the plaintiff did not know about the death of the defendant and therefore he could not make an application, on this ground the court may consider the application.

The procedure for the substitution of LR is quite simple, the main focus should be placed on Rule 4 & 9 of OXXII, CPC wherein if the plaintiff is not aware of the death of the defendant and did not make an application to the court for bringing the legal representatives on record within limitation time, the suit is deemed by the court to be abated, but for the court to dismiss the abatement which was recorded by the court, the plaintiff has to file an application under S.5 of the Limitation Act,1963 for condonation of delay on grounds of ignorance, wherein the burden of proof lies on the plaintiff to prove this aspect of ignorance. Article 120 of the Limitation Act, 1963 envisages that within a time period of 90 days from the death of the said plaintiff or defendant, it is contended that if the application for the substitution of legal representatives is not filed within 90days, the suit stands abated. Article 121 envisages that an application should be made within 60 days from the date of abatement of the suit, hence if Article 120 is read with Article 121 of the limitation act, 1963, henceforth a petitioner may file an application in the court for setting aside the abatement of the suit within 150 days ( 90 days as mentioned in Article 120 of the limitation act plus 60days as mentioned in Article 121 of the limitation act, 1963). Along with this, a petition under S. 5 of the limitation act for condonation of delay should also be present because it is necessary as per OXXII R. 4(5), on grounds of ignorance or “sufficient cause” for the condonation of delay, if the said period of limitation is over.

The expression “sufficient cause” should undergo a liberal interpretation because OXXII, CPC is a procedural aspect and advancement of substantive justice should be given priority.

Conclusion

It can be observed that as per the provisions of O.XXII a suit cannot be abated on account of the death of either party if the right to sue still survives. It was concluded by the courts that the mere fact that a party to a suit has died will not lead to the abatement of the suit; instead, the suit can still be continued.

It is hereby concluded that a suit will not abate or get frustrated if the nature of “right to sue” is in rem and the said suit will abate of the nature of the “right to sue” is in personam whereas a partial abatement will take place when the suit is involving both the in rem and in personam right, wherein only the relief sought in rem in nature will be adjudicated upon by the court by substituting the legal heirs within 90 days.

Another conclusion that can be drawn is that it is very important to note the settled law that the clock of limitation starts ticking for bringing the LR of the deceased party on record from the date of the death of the deceased party, but if the application for bringing on record the LR of deceased party is not filed within 90 days, the suit stands abated against the deceased defendant, now the burden is onto the plaintiff to file an application to dismiss the abatement of the suit within 60days from the date on which the order for abatement was passed.

Now a petition under Section 5 of the Limitation Act, 1963 is needed to file if the application of abatement and impleadment of legal representatives are filed after the 150 day period and the petition should be pleading the ignorance of the death of the defendant, with the proof being shown to the court by the petitioner. But if the condonation of delay petition is not filed and only the applications for impleadment and abatement are solely filed then the court can reject these applications of impleadment and abatement. It is to be kept in mind that it is not the date of knowledge but the date of death of the party from which the limitation starts ticking.

References

  1. https://www.scconline.com/blog/post/2018/08/07/no-abatement-of-suit-in-case-of-death-of-a-party-if-right-to-sue-survives/
  2. Punjab State v. Kabul Singh, MANU/PH/0072/1968
  3. S.R. Gaitonde v. J.J. Fonseca, AIR 1976 Goa 11
  4. Karuppaswamy v. C. Ramamurthy, MANU/SC/0354/1993
  5. Nehra Chits (P) Ltd. v. B. Ramachandra Reddy & Ors, MANU/AP/0641/2003
  6.  M. Veerappa v. Evelyn Sequeira, AIR 1988 SC 506
  7. Radhu Napit v. Tarapdo Napit, 2018 SCC OnLine Jhar 635
  8. Melepurath Sankunni v. Thekittil Geopalankutty, AIR 1988 SC 506
  9. Sardar Amarjit Singh v. Pramod Gupta, (2003) 3 SCC 272

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Procedure followed by the court on receiving an application for execution of a decree

By
Rachit Garg
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0

This article has been written by Karan Sharma, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho. It has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).

Introduction

Execution of a Decree is a concept which is as old as the CPC itself. In general sense, the word “execution” signifies the carrying out of a plan, order, or course of action. But, in legal language, Execution means the process of enforcing a legal judgment (as against a debtor). But who is a debtor? What is the significance of this concept?  How is it decided that the execution will be processed? We will talk about all the things related to execution in the following article.

Where does the need for “Execution of Decree” arise from?

As a suit is instituted in the court, over a period of time and with due procedures, the case is decided in favour of the either party who are involved in the suit. When a judge announces the judgment, the directing part of the judgment is a decree. For example; If A files a suit against B for recover of money and after over a period of time and with due procedures, the case is decided in favour of A (Decree Holder) and against B (Judgment Debtor), and in the judgment, it is directed that B has to pay the disputed amount to A, then the directing part is the decree as it assigns an obligation of performance on B.

Now, even after a reasonable time, when B does not perform his obligation that has been imposed by the Hon’ble Court, then A has the right to enforce the Judgment Debtor to perform his obligation through legal measures. That particular legal measure is called Execution of Decree and this measure is ordinarily initiated by filing an Execution Petition in the court where the decree was passed.

How can you apply for execution of a decree?

According to the Code of Civil Procedure, 1908, you can apply for Execution of Decree either orally or through a written application. 

Order XXI Rule 11 of the Code of Civil Procedure, 1908 talks about the application for executing a decree orally. This method is used by the parties simultaneously when the judge announces the judgment in the court.

Order XXI Rule 12 of the Code of Civil Procedure, 1908 talks about the Executing a decree by the way of a written application along with a certified copy of the decree. The rule also explains how a written execution petition shall be drafted. The Execution Petition asks various questions like the number of the suit; the names of the parties; the date of the decree; whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results; whether any appeal has been preferred from the decree; the amount of the costs (if any) awarded; the name of the person against whom execution of the decree is sought; and etc.

Procedure followed by the court on receiving an application for execution of a decree

When an Execution Petition is filed in the Court, the court does the following:

  1. First step of the court is to check if the Execution Petition is filed within the time period of limitation and confirm that the presented Execution Petition is not barred by the law of the limitation. In a recent judgment, V. Nagarajan vs SKS Ispat and Power Ltd. the Supreme Court said that, even though an application filed along with the execution of the decree that condones the delay in filing of such petition, the applying date of the certified copy shall still be within the limitation time period.

In simple words, if you are applying for execution of a decree and the petition is barred by the limitation time period, then the said petition shall still be treated as within the time period of limitation if the request for certified copy of the Decree is put in within the time period of limitation. 

  1. The next thing that the court needs to do is to list the Execution matter for hearing, issue notice to the respondent and listen to the submissions made by the petitioner and the respondent take the appropriate decision.
  2. In certain matters, The Hon’ble Court is not bound by the law to issue show cause notice to the respondent. This particular aspect is dealt under  Order XXI Rule 22 of the Code of Civil Procedure, 1908. The afore – mentioned provision also says that in the following cases: (1.) if the decree that is petitioned to be executed was passed 2 years before the filing date or; (2.) the decree is being executed against the legal representative of the party and; (3.) if the party against whom the decree is executed is declared insolvent; the issuance of notice is must.
  3. If the party that has been issued a notice does not appear for the listed matter, then the Court is well within its authority to pass an adverse order against such party and issue a favourable decision in the favour of the party that was present in the court. 
  4. If the party which was issued a show cause notice is successful in appearing before the court on the given date, that party has the right to object to the execution of the decree which has been petitioned. The court, then carefully should examine the objections and make such an order the court thinks is fit.

Where in an execution petition the judgment-debtor did not appear even after service of notice under Order XXI, rule 22, the Court passed an order under Order XXI, rule 23(1) directing to proceed execution by attachment of the properties of the judgment-debtor, the order became final and amounted to a decree. No appeal was filed against the said order. Therefore, it was not open to the judgment-debtor to raise an objection as to limitation at a later stage; P. Sainath Reddy v. G. Narayana Reddy, AIR 1982 AP 247.

3.6   After listening to both the parties, given that the need of issuing notice arose    and both the parties were required to be present, and the petition was allowed, then the court directs the Judgment Debtor to perform the obligation that has been levied on him, hence issues the process of Execution of Decree. 

3.7  The court then endorses an Official under whom Execution of the Decree will take place. The Official is then told the date for execution and the manner, that how the decree will be executed. If the Official fails to follow any instruction, then that Official is liable to give a written explanation to the Court stating the reasons for delay in execution or any other reason that amounted to inability to execute the decree.

3.8   The official then executes the Decree in the favour of the Decree Holder and hence the interest of the justice if served.

What happens if the Judgment Debtor is not obligated to the direction the court announced?

In the suits where the decree that has been passed is for the payment of money to the Decree — Holder, The Judgment Debtor has to fulfil his obligation and pay the money that he owes to the Decree – Holder. In few cases, the Judgment —Debtor, either does not pay the amount, or is for any other reason, unable to pay the amount that he has been directed to pay, then the Court has the power to attach and sell the immovable and movable properties of the Judgment – Debtor under the Order XXI Rule 40 – 46 of the Code of Civil Procedure, 1908.

Can the Hon’ble Court put a stay on the Execution of a Decree?

Above in this article, we have over and over repeated that, the courts take a long time in deciding the matters. The courts go through everything that is provided to them by both the parties. And, in the end the court, on the basis of the merits decides the case. When one party is announced as the Decree Holder, it is announced after multiple perusal of the facts, evidence and the statements. 

Then, why should the need to stay on execution arise? The Order XXI Rule 26 of the Code of Civil Procedure, 1908 talks about the stay on the executing of a decree. The provision says that if the court finds any sufficient cause that supports the stay on the execution of the decree, then the Court, in its inherent powers, can put a stay on the execution of the decree.

Conclusion

In conclusion, I would like to wind-up by saying that Execution of a Decree isn’t a mere legal topic or an option to exercise, but it is actually an aid that helps in accessing justice. The Execution of a Decree is a concept that works where the earned justice fails. The Order XXI of the Code of Civil Procedure, 1908 works as a genuine aid in helping the Decree Holder to acquire justice and thus safeguards the rights and interest of the parties.

References

  1. Code of Civil Procedure, 1908 Bare Act: indiacode.nic.in
  2. Code of Civil Procedure, 1908 Bare Act: Universal Publications
  3. Writinglaw.com
  4. LiveLaw.com
  5. Aaptaxlaw.com
  6. Merriam Webster Dictionary
  7. https://www.writinglaw.com/order-21-rule-11-cpc/#:~:text=Oral%20application.,the%20 precincts%20of%20the%20Court
  8. https://www.aaptaxlaw.com/code-of-civil-procedure/order-xxi-code-of-civil-procedure-rule-41-42-43-44-45-46-47-attachment-of-property-order-xxi-of-cpc-1908-code-of-civil-procedure.html

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Legal, social and ethical implications of gene patenting

By
Abanti Bose
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0
genes
Image Source: https://bit.ly/2u178Fl

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

Introduction

Historically, the purpose of the patent institution was to promote research and innovation so that new beneficial results could be promoted. This is a time-limited exclusivity granted to the inventor that allows him to exclude others from using the invention. Patents have existed for a long time, but their emergence in the field of genetics has confused many people. Patents on human genes have raised practical and ethical concerns, all over the world. A majority of the public opposes the patentability of life and, therefore, the patentability of human genes. 

The research community is concerned about the limitations of the research in this field. Health care professionals and payers are concerned about the impact of the patents on the cost of tests. Many industry members, particularly small and medium-sized firms, and patent attorneys are concerned about the difficulties they may face as a result of multiple licenses necessary to develop a new diagnostic kit or a new drug.

Scientists are the ones who know about the advancements of biotechnology but it is for the public to adjudge the social and moral issues that come up due to these inventions. Only society can measure the benefits and hazards of gene patenting and its impact on the general public. This can be accomplished through a properly drafted legal framework. New inventive steps in research are being introduced every day. The remarkable probability of patenting of genes is developing complexities and causing problems in granting patents. There are social and ethical objections in the field of gene patenting, which will be discussed and analyzed in this article. 

Ethically speaking, living beings are creations of God, that cannot be owned by human beings through patents. God is the maker and the only owner of all the living beings on this planet. A living being is vested with inherent dignity and integrity, which shall be protected and guaranteed. Human beings should not play with the wisdom of God by manipulating living beings. Genetic manipulation of organisms and their protection by the patent system had always raised hue and cry on moral and ethical issues. It is quite obvious that patent law cannot protect immoral inventions on the question of ethics and morality.

 According to a recent estimate, patents have been granted or patent applications have been filed for nearly 20% of human genes.  For instance, major genes for monogenic disorders (e.g. Huntington’s disease, Cystic fibrosis) and some common predisposition genes (e.g. breast cancer BRCA1 and BRCA2) have already been patented. However, after the publication of the human genome in 2001, there was a clear decrease in patent filings, and gradually the bar on patentability was lifted. In particular, the European and Japanese patent examiners have had a more stringent approach compared to that of the US Patent and Trademark Office (USPTO).

The patenting of life forms constitutes privatizing life and having life as a property, which is considered immoral. A patent is a private property that can be owned, transferred, or sold just like goods. It is viewed that patenting of life amounts to treating other organisms like private property, Hence patenting of life is nothing but commodification and marketing of life, which is a gross violation of the dignity of life. 

Techniques used in biotechnology

It is important to have a rudimentary understanding of the sciences that underpin biotechnology before we embark on a study of the legal and ethical issues surrounding the patenting of biotechnological inventions and gene patenting. Biotechnological inventions are inventions that concern a product consisting of or containing biological material or a process by means of which biological material is produced, processed or used.  Biological material means any material containing genetic information and capable of reproducing itself or being reproduced in a biological system. Genetic manipulation in farming, agriculture, and horticulture can produce more robust varieties of animals and plants that are able to resist harsh environments and provide better yield, while genetically modified foods can last longer and may even taste better and can be of considerable assistance to populations living in the developing world.

A number of techniques have been employed by the biotechnology industry. They are as follows.

Tissue and cell culture technology involves the production of cell lines. These are immortal, self-replicating samples of cells grown outside the original host, which can be bacteria, plants, an animal, or a human being. The importance of such cell lines lies in their uniformity. Because samples in any given cell line stem from a common ancestor they have the same genetic make- up. This allows scientists to carry out highly accurate comparative tests. Cell lines are of use in the study of biological processes and play a vital role in testing the potentially harmful effects of drugs and other compounds on living matter. Stem cell lines hold considerable promise in the development of therapies in their own right.

Hybridoma technology is concerned with two essentials in the human immune response: white blood cells and antibodies. The technique involves the fusion of antibody-producing white blood cells and tumour cells (myeloma). Myeloma reproduces when injected into an antigen (a foreign body that provokes antibody response) an indefinite supply of antibodies is produced because of the immortal qualities inherited from the tumour cells. Hybridomas have proved to be invaluable in immune system research.

Recombinant DNA technology is also known as genetic engineering. The processes and techniques involved in rDNA technology concern the manipulation of matter at the subcellular level. In this respect, genetic engineering differs from its companion technologies. DNA is also known as Deoxyribonucleic Acid. A string of DNA is contained in the nucleus of almost all living cells with the exception of very basic forms of life such as bacteria. The purpose of DNA is to dictate the function of the cell in which it exists. It does this through genes. Genes are segments or sequences of DNA that activate the production of proteins by bringing together different combinations of amino acids which in turn combine to produce different proteins by bringing together different combinations of amino acids in particular orders. Different genes attract different amino acids which in turn combine to produce different proteins. This is a process referred to as coding for a protein. Different proteins make cells function in different ways. Proteins are also known as polypeptides- which will be frequently used in case laws.

In Silico techniques combine genetic and bioinformatics knowledge to search and compare databases of gene sequences in an attempt to attribute function to as yet unprotected sequences based on matches with already known proteins of similar function.

The sequences of DNA known as genes are themselves composed of chemical bases. There are only four of these bases and they are known by their initial letters: A, T, C, G (Adenine, Thymine, Cystosine, and Guanine). The entirety of the genetic code necessary to create a single organism is called its genome. Recombinant DNA technology is by far the most revolutionary of the techniques employed by the biotechnology industry in recent decades. 

All of these developments from the identification of full or partial gene sequences, the development of tests and vaccines based on genetic material, and the creation of genetically engineered organisms and genetic research tools have been the subject of a patent application. Many of these have been successful but a variety of objections to biotechnological patents have been raised relying on the provisions of the law and we shall consider each of these in turn.

What is gene patenting?

A genetic substance that can be reproduced using artificial means, such as the isolation and cloning of a gene, is considered an artefact, a man-made invention, and is thus patentable if the substance, its function, or a method to produce it, is an invention, if it is novel, has a specific disclosed function and is non-obvious with reference to current knowledge, and can be used industrially.

A gene patent provides the owner exclusive rights over that gene. Usually, the person who discovers or identifies the gene is granted this right by the government or an organization. This right includes sole ownership and its proprietary use for a period of 20 years.

Ethical implication of gene patenting 

The field of ethics tells us to give explanations for our actions and describe our intention. The intention to do good does not matter, what matters is that,  a reason should be given on why that particular action is being done and what is being done. The field of biotechnology needs to address three main areas:

  1. Incentives- the way scientists are promoted to research.
  2. Intentions- end results of that research.
  3. Actions- prospective applicability of the research.

The benefits of biotechnology are advertised largely but its risks are not covered properly. We cannot remain ignorant about the social, legal and ethical concerns of biotechnology. The ethical concerns related to gene patenting are:

  1. Human cloning- for the sake of utility one should not alter the genetic structure. Humans cannot be used as a commodity. Genetic material is a common heritage and one cannot have a monopoly over it.
  2. Crossing biological borders and exchanging genetic material is not ethically correct. An example is the “Dolly” sheep where the human genes were inserted into the animal genes.
  3. Genetically modified living things will be considered not less than a commodity, so all the intrinsic value will be lost. 
  4. The exploitation of women is brought about when biotechnology is used in reproductive biology. Many embryos are taken for doing various researches such as stem cell research.
  5. There are debates concerning that due to human cloning there can be the creation of slaves.
  6. Humans are used as a subject in many research institutions, the concern should be taken before conducting the research and all the procedures should be explained before any experimentation.

In John Moore for the first time, a patent was claimed upon the “cell line” of human beings. In the above case, John Moore was suffering from leukemia for “hairy cell leukemia” during his treatment the physician found out that his cell lines are helpful in preparing a particular medicine and applied for a patent. Moore contended that it was his cell line and, therefore he should be the owner of the property. It was then concluded that conferring rights over a part of the human body is a violation of human dignity and ethical principles. He sued the doctor, the drug company and the University Hospital on the grounds of, inter alia, violation of his proprietary rights. This argument was revoked. The court decided that the contention of Moore is not acceptable on the grounds because there can be no property rights over a human body. However, the claims on the breach of the fiduciary duty and lack of informed consent were approved by the Supreme Court of California.

The social implication of gene testing

Gene patents encourage investment in genetic research by offering a financial incentive in the field of research and development.  Gene patents, on the other hand, are debated to have a ‘chilling effect’ on research and innovation, rather than encouraging it. Because once a gene is patented the owner receives the exclusive right to use the patent for research and development which hinders and limits others organization and researcher to carry forward their experiment without patent infringement. 

Patents may be perceived as causing more issues than benefits in research areas where economic incentives should be irrelevant. The patent limits research by other organizations’ which limits the scope of medicines being created elsewhere. Gene patents create an obstruction for many researchers at medical centres and research centres to conduct experiments to detect rare diseases and cancer treatments. This non-accessibility to health care is unfair and socially unethical. It can also be possible that gene patenting may have an adverse impact on the cost and quality of healthcare services. A patent holder might set a higher price than would otherwise apply because patents award monopoly rights over the patented product or process. A patent holder will adopt restrictive licensing practices and limit access to a particular test, therapy or drug.

Benefit-sharing

The human genome is often described as the common heritage of humanity, a view that has been supported by the Human Genome Organization’s (HUGO) Ethics Committee and by the United Nations Educational, Scientific and Cultural Organization (UNESCO). Patents on human genetic materials are sometimes criticized because they are thought to grant exclusive rights over this common heritage to a limited number of entities. This objection rests in part on concern for fair distribution of the benefits of genetic research. 

When people’s genes are collected for testing or research, the person’s consent is necessary on a personal and national basis for study, research, experimenting, and in some situations, even modification or manufacture of other constituents. If this permission is not obtained in line with the proper procedure, ethical difficulties may arise.

The legal implication of patenting genes

Human genetic research has opened doors for research in “human genome”, “human embargo research” and “stem cell” research. These fields involve serious ethical concerns. Human genomic research employs the exploitation of genetic material in an individual, which involves a lot of ethical complications. Embargo research involves engineering or embargos to develop into a complete human being. Manoeuvring the embargo and removing the stem cells are strongly criticized. 

In the U.S the debate over ethics got aggravated when Stuart Newman applied for a patent on a non-human chimera. He manipulated human genes into an animal. It was neither a human being nor an animal. The patent office regarded for the first time principles of ethics while granting a patent it concluded that if the patent is granted it will outrage the ethical standards of the society. The court held that transgenic human beings are not eligible for patent by virtue of the principles laid down in the 13th amendment of the US constitution, therefore patent was not granted. This made things clear that human beings were restricted from patenting on moral grounds. The judiciary also clarified that patenting of human beings and cloning is prohibited under the US constitution and patent law. 

Cloning as such refers to a scientific process in which biological material is replicated which includes the ‘DNA’, ‘cell’ or ‘an organism’. As the 13th amendment restricts slavery in human beings same consideration was taken to prohibit human cloning and patenting human beings. 

Both the judiciary and patent office proposes that the “cloning of human being violates the inherent dignity of human life and patenting of human beings amount to slavery”. This was discussed in Pioneer Hibred International where cloning was restricted on the basis of ethics, morality and public order. This meant that transgenic humans cannot be patented. Lastly, the US patent Office and judiciary accepted the ethical standards regarding patenting which were not provided earlier by the US patent Law. But looking into further consideration the US laws provide patents on ‘process’ or methods of human cloning. The US law stands diversified that the process of human cloning can be patented but not human cloning. The question is why a process should be granted a patent if there is a process of cloning that may in the future lead to cloning which is against ethical issues. The US laws remained silent on this issue. 

A patient’s rights are defined in a negative sense: for example, a product patent gives its owner the exclusive right to prevent third parties from creating, using, offering for sale, selling, or importing that product for these reasons without the owner’s approval. This right necessitates the patent holder’s active supervision. By providing licenses on his patent, a patent holder can allow third parties to use his invention.

The licensing of the genes is important to promote research and advancement in the field of biotechnological innovations. If the patent rights should be licensed to reduce the burden of organization and research so that it could expand the research through the distribution of patent’s license. A patent holder, or anyone having a license for a patent, needs to abide by many rules and regulations concerning the invention; therefore it is possible that the invention may not be exploited. Licensing agreements are one form of disseminating knowledge that is protected by IPR, and they are usually beneficial to both parties.

The cost of the license fee is directly linked to the problem of royalty stacking. The Organization for Economic Co-operation and Development suggests that license agreements should include mechanisms to set a reasonable overall royalty burden for genetic invention products and services, including research tools. More conventionally, the private and public sectors should be encouraged to develop mechanisms to decrease transaction costs in acquiring rights to use technology.

Gene patenting in India

Section 3(C) of the Patent Act, 1970, disallows “discovery of any living thing or non-living substance occurring in nature” as a patentable subject matter. Section 3 (j) of the Indian Patent Act, 1970 includes objection to plants and animals, in whole or any part thereof, other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals to be patentable.

Recently, patenting in India has been evolving considerably. Therefore to cater for the global developments in biotechnology and its parallel growth in the Indian economy, the India Patent Office issued the Indian Biotechnology Guidelines, 2013 and Manual of Patent Office Practice and Procedure, 2005.

The Manual of Patent Office Practice and Procedure, 2005 focuses on recombinant DNA, plasmids and processes of manufacturing which are patentable provided they are produced by substantive human intervention. The Manual includes the following conditions to be satisfied for granting a patent for any gene:

  • The genetically modified gene sequence/amino acid sequence should be novel, must involve an inventive step and  have industrial applicability;
  • The method of expressing the genetically modified gene sequence/amino acid sequence is novel;
  • an antibody against that protein/sequence that is genetically modified can be claimed to be protected; or
  • That product made from the antibody/sequence can be claimed to be protected.

The criterion to be met for patenting the recombinant DNA and is that “novelty owing to substantial human intervention”, as stated in the abovementioned Manual. The manual provides a proper guideline for patenting of biotechnological inventions and is open for new amendments based on new inventions. 

Conclusion

An invention should be novel, non-obviousness, should have industrial applicability and should have a written description to qualify the requirements of patentability. An invention that qualifies all these criteria only then a patent can be granted. Until the Diamond v. Chakrabarty, 447 U.S. 303 (1980) case, living beings were not patentable. The United States brought living beings that are made through man-made processes like biotechnology under the category of the subject matter of patentability.

The TRIPS agreement brought many changes in the patent law. All the members of the TRIPS agreement including the US, Europe and India now have provided patents on plants, animals and human genetic material. 

Ethical and moral standards should be considered as a parameter to keep check and balance on the development of gene patenting. The biotechnological invention can be used to produce a mass destructive biological weapon through viruses and bacteria. Coming up with such an invention will cause serious effects on human beings and the environment. There is a threat of releasing transgenic animals in the natural environment which may cause an ecological disturbance which is a threat to the biosafety principle.

 In order to control in an efficient way what is being invented the authorities should make sure a debate takes place about what should be protected through patents and which invention should be allowed to reach the market, whether there is a need for cooperation between the various agents concerned. Policymakers have a responsibility to regulate research in general. If they want to encourage research to help foster the creation of useful products and processes, then patent law is an effective mechanism to achieve that goal, through the incentives it is supposed to give to inventors. But as a consequence, policymakers have a responsibility to enact rules describing the requirements for an invention to be patented, and they perhaps should do so by incorporating more scientific and ethics specialists in the drafting of the rules. If policymakers want the ethical aspects of patents to be addressed by patent officers, they should clearly indicate these inadequate legal provisions. If not other specialized agencies, such as ethics committees, should be in charge of such evaluation.

Clear guidelines and institutional safeguards should be put in place, and effective means of control should be guaranteed, coupled with transparent information aimed at the public. Patent applicants, on their side, should develop a sort of ethical sensibility and weigh the possible socio-political impacts of their inventions. In this regard, as already said, the solution is to regulate the field of research itself and make sure that only inventions that have a positive impact on society at large are encouraged.

Lastly, patent examiners should broaden their horizons and make sure the dialogue takes place between the various agents involved in the process of issuing a patent. Any person or group having an interest in the invention at stake should be allowed to intervene in the process of granting a patent. In the end, courts are in charge of deciding on the most controversial cases and reflecting the social acceptance of inventions stemming from new technologies.

References

  1. Moore v. Regents of the University of California,(51 Cal. 3d 120; 271 Cal. Rptr. 146; 793 P.2d 479)
  2. Pioneer Hibbred International v. Holden Foundation Seeds Inc., 35F, 3d. 1226.3, USPQ, 2d. 1385 ( 8th Cir. 1994)
  3. HUGO Ethics Committee, Statement on the Principled Conduct of Genetics Research (1996); Universal Declaration on the Human Genome and Human Rights, 11 November 1997, UNESCO, art 12(a)
  4. Nuffield Council on Bioethics, The Ethics of Patenting DNA (2002)

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

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

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Blog competition winner announcement (Week 1st September 2021)

By
Rachit Garg
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0

So today is the day! We are finally announcing the winners of our Blog Writing Competition for 1st week of September 2021 (From 30th August 2021 to 5th September 2021). 

We’d like to say a big thanks to everyone for participating! It has been a great pleasure receiving your articles on a different legal topic, they were all amazing! 

And now we’d like to congratulate our top 5 contestants, who become the undoubted winners. They will receive Prize money of Rs 2000, LawSikho store credits worth Rs. 1000 and a Certificate of Merit from team LawSikho.

They will also get an opportunity to intern at iPleaders under the mentorship of Ramanuj Mukherjee, Abhyuday Agarwal, Harsh Jain, and Komal Shah. Their articles will get published on the iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

Their entries (see below) received maximum marks based on the average marks given by the panel of editors, and have been crowned the winners!

S.noNameAbout AuthorArticle
1Gyaaneshwar JoshiInternThe ideology behind obligatory motor vehicle insurance : national and international perspective
2Tripti M KumarStudent pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.What every henna artists need to know about copyright
3Arya Mittal InternCentre-state relations and its impact on good governance
4Ashutosh SinghInternIP Perception Study/Survey 2020 by EUIPO
5Priyanshi SoniInternDistinction between ‘temporary injunction’ and ‘attachment before judgment’ under CPC

Meet our next 5 contestants who made it to top 10 here. They will receive a Certificate of Excellence from team LawSikho.

They will also get an opportunity to intern at iPleaders under the mentorship of Ramanuj Mukherjee, Abhyuday Agarwal, Harsh Jain, and Komal Shah. Their articles got published on iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

S.noNameAbout AuthorArticle
6Prabha DabralInternPardoning criminals : how Presidents wield their power
7Ishita PalInternChild marriage & solutions through the eyes of Afghanistan
8Dnyaneshwari PatilInternSedition Law and the attack on journalists
9Vishakha BhandakkarStudent pursuing Certificate course in Companies Act from LawsikhoIs liquidation irreversible
10Pratha KotechaStudent pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawsikhoLaw of contracts and its implementation in the unorganized sector of India

Click here to see all of the contest entries.

Our panel of judges, which include the iPleaders Blog Team, chose the winning entry based on how well it exemplified the entry requirements.

Certificates will be sent on the email address given by the contestant while submitting the article. The contestants have to claim their prize money by sending their account details as a reply to the mail in which they received their certificate within 1 month (30 days) of the date of declaration of results and not afterwards. 

For any other queries feel free to contact Vanshika Kapoor (Senior Managing Editor, iPleaders) at [email protected]. 

LawSikho credits can be claimed within twelve months from the date of declaration of the results (after which, credits will expire).

Congratulations to all the participants!

Regards,

Team LawSikho

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

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

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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

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Contempt of the Parliament House in India and examples of contempt in recent times

By
Diva Rai
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This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail the concept of contempt of the Parliament House, punishments for contempt and recent cases of contempt of the Parliament House. 

Introduction

Parliamentary privilege can be defined as the rights and immunities that are provided to the members of Parliament and the Parliament itself. The objective behind granting these privileges is to allow the members of the Parliament to perform their functions free from any external barriers/constraints. The Parliament has the authority to determine the extent of these rights and immunities and legislate in this regard. However, no legislation has been passed by the Parliament wherein the extent of these privileges has been provided.

A breach of privilege occurs when any person commits an act that is in violation of the privileges granted to the members of parliament or the Parliament itself. This includes acts of publishing news items/speeches without the consent of the house, obstruction of the proceedings of the house etc. When such a breach of privilege occurs, it is called contempt of the Parliament House and the person who is charged with the contempt of the Parliament House can be punished with imprisonment or fine or can be given a warning against future contempt.

Before we delve into the recent cases of contempt, let us try and understand the law revolving around contempt of the Parliament House in India.

Contempt of the Parliament House

A contempt of the Parliament House can be defined as any act that:

  1. Causes an obstruction in the conduct of proceedings of the House.
  2. Causes an obstruction in the performance of functions by any officer or member of the House.
  3. Any other act that directly or indirectly has such an effect.

Proceedings against contempt are very important because the nation cannot function properly if the Parliament or its members/officers are unable to perform their duties in an efficient manner.

Constitutional provisions

The Constitution of India has several provisions that deal with the privileges granted to the Parliament and its members. Some of the provisions have been enumerated below:

Powers and privileges of the Parliament and its members

Article 105 of the Constitution enlists multiple powers/privileges that are vested in the Parliament and its members. These powers/privileges include:

  1. Freedom of speech in Parliament.
  2. Immunity from any proceedings in any court w.r.t anything said or any vote given by the member in the Parliament.
  3. Immunity from any proceedings in any court against the publication of any report, votes, paper etc. by or under the authority of the Parliament.

In Tej Kiran Jain vs. N. Sanjiva Reddy (1970), the Supreme Court observed that anything and everything said by a member of the Parliament during the course of the business of the Parliament is protected and the member is immune from any action regarding the same by any court in the country. In Surendra Mohanty v. Nabakrishna Choudhury (1958), the Orissa High Court had held that even if the statement made by the member of Parliament amounts to contempt of court, no action can be initiated against the same. 

Inquiry into proceedings of the Parliament

Under Article 122 of the Constitution, a restriction is placed on the powers of the judiciary to inquire into the proceedings of the Parliament. The restrictions are as follows:

  1. Inquiry into the validity of the proceedings of the Parliament on the ground of irregularity in the conduct of the proceedings, i.e., the procedure of the Parliamentary proceedings.
  2. Inquiry into the person or officer authorised to regulate the conduct of business and procedure of the Parliamentary proceedings can.

Publication of the Parliamentary proceedings

Article 361A of the Constitution states that any person can publish the proceedings of the Parliament subject to such publication being a true report of the proceedings made without any malice. However, publication of any secret proceedings of the Parliament or any State Legislature is prohibited.

Code of Civil Procedure, 1908

Section 135A of the CPC provides protection to the members of the Parliament and State Legislatures against arrest and detention in the following circumstances:

  1. During the continuance of proceedings in the Parliament or State Legislature.
  2. During the continuance of proceedings of any Committee of the Parliament or State Legislature.
  3. 40 days before or after a joint sitting of both the Houses of Parliament or the State Legislative Assembly and the State Legislative Council.

In K. Anandan Nambiar vs. Chief Secretary, Government of Madras (1966), the Supreme Court held that if a member of the Parliament was arrested under the provisions of the Preventive Detention Act 1950, the right to attend the proceedings and cast a vote cannot be claimed by the member. 

Breach of privilege

A breach of privilege can be defined as any act that is in violation of the privileges vested in the member of the Parliament or the Parliament itself. Some of the examples of breach of privilege have been discussed below:

Withholding communications from a member in custody

In the case of In re. K. Anandan Nambiar vs. Unknown (1951), the Madras High Court observed that an act of withholding communication from any member of Parliament who is under arrest or detention to the Secretary-General, Speaker or Chairman of a legislative body would constitute a breach of privilege and therefore would amount to be a contempt of the Parliament house.

Inputting motives to members

In Ram Gopal Gupta’s case, the Committee of Privileges observed that there was an attempt to input motives in the minds of the members of the Parliament through a letter issued to that effect. Due to the points raised in this letter, multiple issues and questions were raised in Parliament. In light of the same, the Committee of Privileges held that the actions of Mr. Ram Gopal constituted a breach of privilege and therefore would amount to a contempt of the Parliament House.

Libel and slander

In Hindustan Times Case, several statements were made in the editorial segment of the Hindustan Times. These statements cast reflections on the character of the members of Parliament and the procedure of the Parliament. The Committee of Privileges observed that if any person by way of speech or print media issues defamatory marks against any member of the Parliament or the Parliament itself, it would constitute a breach of privilege and therefore would amount to contempt of the Parliament house. The Committee herein held that the statements published by Hindustan Times constituted contempt of the Parliament house but did not take any action because of an apology tendered by the Editor of the newspaper.

In another case, Jadeed Markaz, a weekly newspaper, had published derogatory statements regarding the Deputy Chairman of the Rajya Sabha. The Committee of Privileges observed that the statements used by the editor of the newspaper crossed the limits of decency and were solely aimed at gaining cheap publicity. In light of the same, the Committee held that the actions of the editor constituted a breach of privilege and therefore would amount to a contempt of the Parliament House. 

Assault on members of the Parliament

If any person obstructs, molests or assaults any member of the Parliament during the conduct of business in the Parliament, the same constitutes a breach of privilege and therefore would amount to contempt of the Parliament House.

In a complaint of breach of privilege, a member of the Rajya Sabha alleged that he was assaulted by some policemen. The Committee of Privileges while examining the said compliant held that there was no breach of privilege on two grounds, firstly, that the assault occurred in a private space and not inside the Parliament during the conduct of the business of the House, and secondly, the assault did not happen when the member was performing his duties as a representative of the people in the Upper House of the Parliament.

Disturbances from visitor’s gallery

If any person who is attending the session of the House as a visitor performs any act by which the proceedings of the House are disrupted, the same constitutes a breach of privilege and therefore would amount to contempt of the Parliament House.

In an incident that occurred on 18th March 1982, 14 people from the visitor’s gallery were taken into custody for shouting slogans and disrupting the proceedings of the House. This act was deemed as contempt of the Parliament House and all the 14 people were punished with simple imprisonment. In another incident, a visitor from the visitor’s gallery was punished with simple imprisonment for shouting slogans and throwing chappals on the floor of the House.

Making a misleading statement in the House

If a member of the House makes a misleading statement deliberately then the same constitutes a breach of privilege and therefore would amount to a contempt of the Parliament House.

However, if a particular statement, irrespective of whether it is misleading or not, was made by the member based on the information available to the member at that time, then the same would not constitute a breach of privilege or contempt of the Parliament House.

Who can punish for breach of privilege or contempt

In Harendra Nath Barua v. Dev Kanta Barua & Others (1958), the High Court of Assam held that only the concerned House can issue punishment regarding breach of privilege or contempt of that House or its members. This power was called the ‘keystone of parliamentary privilege.’ In Sushanta Kumar Chand v. Speaker, Orissa Legislative Assembly (1973), the Orissa High Court held that the House can impose a punishment of imprisonment for contempt or breach of privilege. It further held that the duration of such imprisonment cannot extend the duration of the session of the House.

In A.M. Paulraj vs. The Speaker, Tamil Nadu (1985), the editor of a Tamil magazine, had published several comments criticising the members of the State Legislative Assembly. The Privileges Committee passed an order for simple imprisonment against the offender for one week. This order was challenged by the offender on the ground of violation of Article 21 of the Constitution. The Madras High Court, while affirming the decision of the Privileges Committee, held that the offender cannot claim a violation of Article 21 because the punishment had been issued in accordance with the procedure established by law. 

Kinds of Punishment that can be imposed by the Houseṣ:

  1. Simple imprisonment for the duration of the session of the House.
  2. Imposition of fine.
  3. Initiation of legal proceedings for prosecution of the offenders.

Recent instances of breach of privilege or contempt of the Parliament House

Date and SubjectIncident
August 19th 2020: Disparaging remarks by BJP MPMr. Shashi Tharoor, the head of the Standing Committee on Information Technology had decided to call a meeting to discuss the alleged misconduct of Facebook. In light of the same, disparaging remarks were made by the BJP MP Nishikant Dubey on Twitter. A breach of privilege notice was issued by Mr. Shashi Tharoor on the ground of harm caused to his reputation through the remarks made by the BJP MP.
February 3rd 2021: Warning issued to Rajya Sabha MPs by the Chairman of Rajya SabhaMr. Venkaiah Naidu, the Chairman of Rajya Sabha, issued a warning to all the members of Rajya Sabha stating that recording the proceedings of the House on mobile phones would be deemed as a breach of privilege and an action for the same may be initiated by him if anyone is found guilty.
February 13th 2021: Breach of privilege notice against Rahul GandhiRahul Gandhi urged his party members and also the members from TMC and DMK to observe a 2-minute silence for mourning the deaths of farmers during the farmer protests. Three BJP members moved a breach of privilege notice against this on the ground that the permission of the Chairman was not taken for the mourn and the behaviour was unparliamentary and it was gross misconduct of procedure.
July 23rd 2021: Breach of privilege motion against the Minister of State for Health Congress alleged that the Minister of State for Health Mrs. Bharati Pravin Pawar misled the Parliament by providing false data regarding Covid-19 related deaths due to oxygen shortage during the second wave. The Minister reportedly stated that there were no Covid-19 related deaths due to oxygen shortage.
July 24th 2021: Misleading remarks on judges’ vacanciesLaw Minister Kiren Rijiju made a statement in the Rajya Sabha that filling up of judges’ vacancies is a continuous process and a time limit cannot be ascertained for the same. This statement was made in response to a question regarding the appointment of judges from the recommendations of the Supreme Court collegium.A CPI(M) MP moved a motion for breach of privilege on the ground that the statement of the law minister was misleading because he failed to mention that out of the 80 recommendations, only 45 were notified for appointments.
August 9th 2021: Not attending Committee meetings amounts to a breach of privilegeMr. Shashi Tharoor, the head of the Standing Committee on Information Technology had scheduled a Committee meeting on 28th July but the meeting could not take place due to lack of quorum. This lack of quorum was the result of multiple BJP MPs not attending the meeting and giving information of the same at the last minute.He alleged that the conduct of the BJP MPs amounts to a breach of privilege and contempt of the Parliament House because it disrupted the proceedings of the Committee and the discussion on the important issue of Pegasus had to be postponed.

Conclusion

When the citizens of the country vote and elect representatives on their behalf, the least they can expect in return is accountability. Breaches of privilege or contempt of the Parliament House are incidents that indicate that the members of the Parliament have time and again failed to maintain the standards of accountability. Making derogatory comments against each other, not attending Committee meetings, disrupting and delaying the Parliamentary proceedings in one way or the other not only indicates a lack of accountability but also the lack of fear against the punishment for offences constituting a breach of privilege or contempt of the Parliament House.

Imposition of small fines, simple imprisonment till the session ends are not punishments that instil fear against violation of the established principles. In most cases, a simple apology is enough to conclude proceedings regarding breach of privilege or contempt of the Parliament House. Therefore, there is a need for stricter punishments to ensure accountability and smooth proceedings in Parliament.

References

  1. https://rajyasabha.nic.in/rsnew/rsat_work/CHAPTER%E2%80%948.pdf 
  2. https://prsindia.org/theprsblog/parliamentary-privilege-faqs 
  3. https://indianexpress.com/article/india/disrupting-parliamentary-proceedings-contempt-of-house-venkaiah-naidu-7517931/ 
  4. https://www.hindustantimes.com/india-news/o2-deaths-cong-moves-breach-of-privilege-motion-against-minister-for-statement-101626952019151.html 
  5. https://indianexpress.com/article/india/cpm-mp-john-brittas-kiren-rijiju-parliament-monsoon-session-7419702/ 

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

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