Examining the inheritance rights of Muslim women under Muslim Law

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October 24, 2021

This article is written by Ekanksh Shekhawat from Kirit P. Mehta School of Law, Mumbai and the article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders).

Table of Contents

Introduction

Despite the fact that women account for almost half of the earth’s population and contribute significantly in all areas of the economy, their social, economic, and political status is not the same as those of males. Many women are denied the right to inherit property when their parents die in Muslim regions. This is primarily due to a failure to follow Islamic principles on inheritance at both the individual and family levels. Nonetheless, Islam has given women a dignified role in the household and society in all aspects. The concept of inheritance of property, in particular, is stated clearly in the Holy Qur’an.

The customary laws are overwhelmingly patriarchal and discriminate against women. When you challenge the rights of inheritance, you are simultaneously fighting patriarchy, as well as family and relationship principles. It has been claimed that fathers and sons are unwilling to share the parental property with married women since they believe she belongs to the husband’s family and has already been rewarded with a dowry at the moment of her wedding. The Muslim laws in India governing Muslim women’s right to property are considerably different from those in other countries; there are two distinct schools of opinion. There are no defined property rights for Muslims in India, according to Muslim property law, and they are administered by two schools of Muslim personal law: Shia and Hanafi. The purported prejudice against women in society is attributed to society’s failure to apply Islamic inheritance legislation. Women’s roles and statuses in the Islamic community are steadily advancing in academics, economics, healthcare, and leadership in the twenty-first century, but they still fall behind in terms of inheriting property, which is provided by Islamic principles. Therefore, the goal of this research is to look into the Islamic principles that have been designated to women’s inheritance entitlements, as well as their contemporary status in the Muslim background in terms of obtaining inheritance alongside male counterparts. The research will concentrate on financially strengthening women by securing their inheritance share in the family, together with male family members, using Islamic inheritance distribution models.

Muslim women’s right to inheritance in ancient societies

In the Islamic region, the era preceding the Prophet Muhammad’s revelation of the Quran is known as Jahiliyyah. During this time, infant daughters were slaughtered for fear of inheriting a share of the family’s wealth. They would also be seen as a source of disgrace for their family’s reputation in societal structure. Women were not regarded as heirs to their parents’ estate throughout the Jahiliyyah (ignorance) period. Women and children in the Arabian Peninsula were not permitted to retrieve any inheritance bestowed by their parents before the arrival of Islam, as per Qatdah (companion of Prophet Muhammad). It was usual at the period that only those who could ride horses and demonstrate heroism on the battlefield would be eligible for inheritance. In the period of Jahiliyyah, ancient communities, and all other religions except Muslims, there was no tradition of transferring an inheritance to females. When we look at the social-economic traditions and patriarchal social systems of ancient civilizations, we can see that there is no thorough rule regarding women’s inheritance along with their brothers after their parents pass away. In most ancient civilisations, women were regarded as subordinate to men in the household and social levels. Women were thought to be the gateways of evil via which Satan could enter the human body and render God’s law void.

Muslim women’s rights in inheritance in the Quran

Following the introduction of Islam, it was decreed that no one, whether male or female, feeble or powerful, ill or well, abandoned or legally adopted, should be denied inheritance after their parents passed away. In Surah al-Nisa verses 7 and 33 of the Qur’an, the means of distributing inherited money is mentioned. It has provided a comprehensive guideline about the rights of inheritance of property among the generations and how it would be allocated as per Qur’anic procedures in verses 11 and 12 of Surah al-Nisa. Furthermore, these two verses not only embrace and safeguard women’s rights but also explain the inheritance transfer procedures for both men and women. It is vital to note that the revelation of the verses listed above took place during the Jahiliyyah period, which was a pre-Islamic period in which women had no privileges to inherit after their father, brother, or husband died. According to Imam al-Tabari’s work Tafsir, during the Jahiliyyah era, women and children were not allowed to inherit anything. To overcome this oppression, the Qur’an states that as a daughter, wife, and mother, women are entitled to a share of the inheritance, as stipulated in Surah al-Nisa, verses 11-12.

There is a widespread misunderstanding, especially in the Islamic community, that men receive a greater share of inheritance than women do. As a result, when it comes to inheritance, women are deemed inferior to their male counterparts. Therefore, there is a concept known as nafaqah (monetary spending) that a man must sustain for his spouse and kids. It comprises of food, clothing, a home, and other necessities for the wife and kids future. In addition, at the marriage ceremony, men are responsible for paying Mehar as a dowry present to the bride. He is also accountable for looking after himself, his wife, children, ageing parents, and close relatives depending on his competence. According to the analysis above, obtaining a double portion of inheritance compared to women does not confer any additional benefits on males, nor does it imply that men are superior to women in terms of inheriting more. It is believed that a man’s stake is twofold that of a woman’s because men have certain responsibilities as family caretakers, which have already been addressed. Nonetheless, as per Islamic inheritance laws, a man does not always obtain a double portion of an inheritance as a woman. Instead, in some circumstances, women are given more inheritance than their male counterparts. There are other instances in this respect; however, the present article merely emphasizes a handful. In the case of a deceased individual who left a daughter, wife, father, and mother, the daughter will receive half of the whole inheritance. The wife will receive one-eighth, while the father and mother will each receive one-sixth. In this situation, the daughter receives a larger portion than the father, who is a man. ii) If the deceased left a daughter and a husband, the daughter receives half of the whole property, while the husband receives just a quarter. As a result, in this case, women obtain a larger share of the inheritance than their male counterparts do. A man and a woman obtain an equitable distribution in another scenario. For instance, if the person who died left only maternal brothers and sisters, both will obtain an equitable distribution of the sixth, and if there are more than two, they will end up sharing a third after the deceased’s bequeathable and liabilities are paid.

Nonetheless, the Qur’an and Prophetic practices make it abundantly clear that a woman’s financial support is her husband’s responsibility, even if she has a substantial sum and is capable of looking after herself. She has the right to demand that her husband provides for her financial requirements, and he is obligated to do so. While I was studying the post jahillayah period, I found out how men receive a greater share of inheritance than women do, as a result, when it comes to inheritance, women are deemed inferior to their male counterparts. While analyzing different scholars, the logical explanation behind giving man the greater share was that, since upon marriage a woman receives MEHR, which is a pre-decided amount of money or kind, which she is entitled to receive compulsorily, either after marriage or after divorce. In all the cases above, it can be observed that women are on the receiving end when they fulfil the role of a daughter, wife and mother, whereas men are at the giving end while fulfilling the role of husband and father.

Barriers to muslim women’s right to inheritance

Old standards and patriarchal social systems determine women’s standing and role in every community, where women are ignored and regarded as submissive to males. It is a typical occurrence in Muslim families for women to be denied their liberties, notably when the subject of inheritance allocation among the deceased’s heirs arises. However, there are a number of barriers that prevent women from obtaining bequests in the family with their male family members, some of which are listed below.

Socio-Cultural Traditions: The socio-cultural heritage has had a detrimental effect on the growth of women empowerment in our present day, in every aspect of their lives, especially in the domains of attaining inherited property ownership, as past has shown for ages. In today’s Islamic communities, a similar belief persists that women do not have the right to inherit property and dispose of it accordingly to their inclinations. After the death of their parents, many women do not get their share. Women are often intimidated and emotionally manipulated into handing over their property to their siblings. Traditional customs and socio-cultural systems discourage women from inheriting property. Even in certain cultures, it is considered shameful for women to inquire about their inheriting property from their brothers unless they have been awarded it.

Prejudice against Women: Prejudice against females is a daily occurrence around the world in many aspects of their lives, and the Islamic community is no exception. Regardless of the fact that it is the twenty-first century, the socio-cultural heritage in Islamic communities is not in support of women. In terms of parenting, boys frequently exhibit additional attention and preference to boys over girls. This inclination exists irrespective of the family’s social standing, as it is widely recognized in society, both in wealthy and poor households. Women, on the other hand, must be free of any form of abuse or societal discrimination based on their gender, according to Islam. Islam forbids any form of gender inequality in the social lives of males and females. It indicates that Islam forbids prejudice between males and females, as well as between girls and boys. In a household and in a social structure, both boys and girls should be regarded appropriately.

Lack of Religious Awareness: Ignorance of religious knowledge is another key factor that prevents women from inheriting once their parents pass away. It prevents vulnerable women from inheriting from their families. Nonetheless, some Muslim nations, such as Turkey and Tunisia, are attempting to provide women with equivalent rights in inheritance matters, but they are failing because they do not comprehend the Shariah in the application and in relation to the essential rights of women guaranteed by Islam. Oftentimes, the Islamic community takes action to encourage women without fully comprehending Islamic principles and beliefs. However, women’s positions and status are steadily changing around the globe, especially in Muslim countries, yet this is not in accordance with Islamic beliefs and values.

Suggestions and recommendations

The present article identifies a set of measures that could help to resolve the problem of women’s inheritance rights in the families, resulting in peace and less conflict among successors. To address the problem, Muslim communities must recognise the relevance of Islamic doctrines and practices in their everyday lives, as well as adhere to the Islamic inheritance distribution model following the death of their relations. Women should not be discriminated against in the handling of inheritance properties, as the Qur’an and Sunnah make it very clear. Islam forbids any form of favouritism between men and women in their lifestyles, especially when it comes to inheritance dispersal among successors. Parents should not expect only the male heir to bring joy and honour to the entire family; both male and female heirs should be equally expected to contribute happiness and honour to the family’s reputation. Experts should take measures to strengthen knowledge about the Qur’an and Sunnah’s teachings of the exclusive rights of inheritance bestowed on both sexes. The scholars are confident that current law is thorough in ensuring women’s share of Islamic inheritance, free of any existing prejudice in practice among Muslim communities across ethnicities. The state may also impose a legislative ruling on the practice of women’s inheritance rights predicated on Qur’anic principles, ensuring financial stability among family members and community as a whole.

Conclusion

The research finds that in Islam, women have a unique role and status in the family and community, relying on the foregoing discussion and analysis. From the moment she is born until she dies, Islam ensures her financial status, which is to be taken care of by competent men in her family and community. Nonetheless, it is discovered throughout the article that several circumstances, such as socio-cultural traditions, patriarchal social systems, and a lack of religious awareness and practice in ordinary routine, impede women’s claim to inheritance in the household. As per the research, if a Muslim household adopts Islamic inheritance distribution practices, abuse and injustice between men and women in reference to inherited property distribution among the heirs will be mitigated. India is among the world’s most welcoming and open-minded nations and it prides itself on being the globe’s most secular-democratic nation. It has always stood up for what is good and opposed what is unjust. The patriarchal Muslim population must acknowledge women’s rights, and it is past time for us, as Indian members of society, to do so as well. Nowadays, it is important for individuals to unite in their opposition to the sufferings of Muslim women who have been struggling for a long period. There has been an erroneous understanding of Islamic teachings, and it is the responsibility of the legislature and the judiciary to address this.

References

Hashia, H. (2017). Role of Muslim Modern Women. Muslim Women’s Contributions to Society. Kuala Lumpur: Fajar Ulung Sdn.Bhd.
Al-Hibri, A. Y. (2001). Muslim women’s rights in the global village: challenges and opportunities. Journal of Law and Religion, 15, 37-66. https://doi.org/10.2307/1051514
Khan, M. I. (2012). Empowerment of Muslim Women. London: Koros Press Limited
Sait, S. and H. Lim (2006) Land, Law and Islam: Property and Human rights in the Muslim World (London: UN-Habitat/ Zed Books).
Ahmad, M., Batool, M., & Dziegielewski, S. F. (2016). State of Inheritance Rights: Women in a Rural District in Pakistan. Journal of Social Service Research, 42 (5), 622-629. https://doi.org/10.1080/01488376.2016.1177633

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Here is what you need to know about social media policy

By

Abanti Bose

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October 24, 2021

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

Table of Contents

Introduction

Social media is omnipresent, even the slightest or the tiniest thing you can think of is already affected or getting affected by it. Big firms and organizations have many stakeholders and even the tiniest act or an omission can land each of them in a big predicament. A company’s image can either shine bright or be tarnished by a simple post or a review. It can either lead the prices of the stocks to touch the skies or make a corporation go bankrupt. The consequences might be extreme.

The employees are the real face of a company or an organization. They represent the company to the market or the world as a whole. In today’s world, everyone is active on social media and we like to post or comment about the place where we are working. Therefore, it becomes extremely important to regularize the conduct of employees as well as the organization online. This is done through social media policy.

This article is aimed at understanding what is a social media policy, what is the need for having an effective social media policy, important clauses that should form part of your social media policy along some important case laws.

What is a social media policy?

A social media policy is a set of guidelines or do’s and don’ts that describes how an employee or an organization should conduct themselves online. A best social media policy should work twofold; It should protect the company’s reputation and secondly, encourage the employees to advocate for the company on the web. To maintain public confidence and trust in a company/organization it is expected that employees adhere to the social media policy of the company and act inconsistently with the company’s values which includes but is not limited to respecting the law of land, respect for different communities and persons, work ethics, accountability, and transparency.

Need for having a social media policy

Be it small or big, all businesses and various bigger organizations like Adidas, FedEx, Coca-Cola, GM, etc. have their own social media policy. These policies form guidelines for the people working under that organization that manages their conduct on various social media accounts, professional or personal. But why do these firms need a social media policy?

It helps manage risks- A company undertakes various kinds of risks, however, some risks can be really dangerous. For example; a bad review by an employee on the web about the company can influence the public and can affect its sales or services. Subsequently, it becomes important to manage such risks by clearly mentioning what is or is not acceptable online and avoiding confusion and expectations.
It builds public trust– This policy can help companies maintain consistency of brand voice, tone, and messaging across various social media platforms. As a result, it instills confidence in the public and helps win their trust.
It helps companies to combat various crises- A well-made and well-structured social media policy can save the day. Since it sets out do’s and don’ts, this will not only help the company to manage its PR crisis due to a potentially offensive post but also any kind of legal and regulatory issues and prevent damage to the company’s reputation.
It encourages employees to work efficiently– A social media policy encourages employees to use their creativity while posting something about the company online. It gives them a sense of responsibility that their actions are responsible for the company’s reputation and consequently, they work efficiently. However, their actions must always align with the policy.
Employees are assets to the company- An employee’s network is more trusted than the official networks of the company. So if an employee posts anything about the company, it will gain more attention. Through a well-drafted social media policy, employees can be empowered to become advocates of the company and can create a positive and valuable brand message across the Internet. This can be also done by providing adequate social media training to the employees.

In the year 2015, Apple added a new set of emojis which also included changing the colour of the human emojis to better represent human diversity. However, Clorox, a bleach company, missed the update. The Twitter account of Clorox tweeted a picture of a bottle which was a mosaic consisting of many emojis and captioned it as “New emojis are all right but where’s the bleach”. The emojis used in the bottle was only in white despite the update. In its tweet, Clorox seemed to be commenting on why bleach was not included among the hundreds of emojis that Apple had added to its list of emojis. However, the tweet was taken by storm by users as it was considered racist. As a result of which the company received a huge backlash from the users. Eventually, they had to delete the post and issue an apology.

This incident explains the need of having a social media policy in place. It is important to regulate the content that is being posted on the social media accounts of the company and protect brand reputation.

Important clauses that should be incorporated in a social media policy

A social media policy should strike a balance between do’s and don’ts. It must take into consideration that the policy shouldn’t be gruesome and filled with jargon which makes it all the more difficult to interpret. It should reflect the dynamic workplace where social media is in every nook and cranny. The policy is usually at rescue during crises and therefore, it must be in simple words and comprehensible.

It can be inferred that social media policy plays a significant role in building a company’s reputation. Therefore, it must be drafted carefully and include all the important clauses. Below is the list of some important clauses which ought to find a place in the policy.

Representatives of the company/organization

A company usually has a dedicated team of members whose primary work involves dealing with social media which includes the PR team, social media team, or even marketing team. These people are the official spokesperson of the company who has been authorized to post or speak on behalf of the company. Their roles should be laid down clearly which will include daily postings and engagements, advertising, customer care services/inquiries, crisis management, security risks associated with social media platforms, passwords, code of conduct, etc.

On the other hand, there are other employees of the company. These employees are the company’s regular employees whose work caters to everything else but being the company’s official spokesperson. The social media policy should mention all things that these employees are allowed/not allowed to post, comment or share and take responsibility for posts uploaded by them.

For example; the social media guidelines of Adidas group state, “Do not comment on work-related legal matters unless you are an official spokesperson, and have the legal approval by the Adidas Group or its brands to do so. In addition, talking about revenues, future products, pricing decisions, unannounced financial results or similar matters will get you, the company, or both into serious trouble.”

Ethical standards

After laying down the roles of each team, it is important to get into details as to what will be the acceptable code of conduct of employees. This section mentions what is an acceptable code of conduct and also mentions what and which type of content can be posted on the various social media platforms of both employees and the company.

Honesty and transparency- Employees should always be honest while posting anything online. He should specifically mention in what capacity he is associated with the company. The employee should mention if he is not the company’s official spokesperson and is speaking for himself and not for the company. Even the slightest remark can affect the company’s reputation.
Be responsible- An employee should be responsible for his actions. If he/she commits any mistake, then he/she should be the first person to acknowledge that. Moreover, if any employee sees anything which is a clear violation of rules and regulations, it is their responsibility to report the same to the appropriate authority. In addition to this, an employee should avoid commenting on political news or information.
Be respectful- Each employee should respect the work of other employees. It is unnecessary to speak or comment on anything disrespectful about other employees and should be avoided in all circumstances. Above all, respect the audience and don’t use casteist slurs, public insults, defamatory statements, or engage in any argument. Eventually, any kind of hate speech can derogate the company’s image.
Maintain privacy- Respect the privacy of fellow employees, managers, customers, partners, top-level management, supervisors, etc. No employee should be allowed to post any personal information without the permission of the person concerned.
Use sound judgment before posting- Don’t post anything or everything which comes to your mind. Use common sense and sound judgment and review while posting anything which is required. The employees should avoid any kind of online spats and approach someone who officially handles these. Once anything is uploaded on the Internet, it can’t be deleted or vanished permanently by any means. So, be mindful that the actions of employees directly or indirectly have an impact on the company’s reputation.

Swiggy and Zomato are well reputed online food ordering platforms. Their online marketing strategy is extremely attractive and remarkable. They usually keep posting really attractive posts or phrases and enticing food images on their social media platforms or messages to attract people. They know exactly what to post and how to make consumers order food from their app. All such things keep the people hooked up to their pages and increase their engagement rates. This is because these platforms have a well-defined social media policy that clearly defines the roles and responsibilities of employees.

Confidentiality clause

This is one of the most important clauses of social media policy. Every company has its trade secrets or any kind of confidential information regarding internal management. Even the official spokespersons should not reveal any non-public information about the company on online platforms. This type of information can be protected through signing a non-disclosure agreement or any other contract. To create deterrence, violation of this clause can attract penalties like suspension or termination.

For example, the social media policy of GM mentions, “Keep confidential information to yourself-You should never reveal non-public company information on social media. Treat all confidential information and trade secrets of our company, of our partners and suppliers, as strictly confidential.”

Strict compliance with laws and regulations

Ignorance of the law is not an excuse. Everyone is supposed to know the law of land. The organization, as well as the employees, are expected to follow trademark, copyright or intellectual property rights. Make sure that employees don’t copy the work of other organizations without their consent and give due credits if required. In addition to this, it is important to adhere to the social media laws and other laws that are in existence, and violations of them can even result in lawsuits.

This can be seen in the Adidas Social Media guidelines which state, “Please respect copyright. If it is not yours, don’t use it. It is very simple. It is that person’s choice to share his or her material with the world, not yours. Before posting someone else’s work, please check with the owner first.”

Reporting of negative activities

There is the possibility that the employees may engage themselves in any kind of negative activities like hacking, disrupting or destroying the forums or platforms, misbehaving online with fellow employees or customers, violating the company’s policies, posting anything defamatory, harassing, and pornographic, or anything which can create a hostile work environment.

These kinds of activities can affect the company’s reputation and must be stopped at the earliest. Therefore, a social media policy should also have a clause wherein it should be the duty of each employee to report such activities to the concerned authorities so that appropriate action can be taken.

Increasing employees participation

Every employee is an asset to an organization. Therefore, it becomes significant to involve him/her in working for the organization. This clause should mention how an employee can actively participate in enhancing a company’s reputation without affecting their productivity.

It is important to take into account that employees’ networks are far more engaging and valuable than the company’s official network. Employees must be encouraged to post about their work ethics, environment, how the management supports them, perks of being part of that company, or anything which can bring value to the company. This participation will give twofold benefits, firstly, it will help employees to develop their network and brand and it will help the company to reach the best talent, increase sales productivity and build a huge network. Moreover, the company should also recognize that staff may wish to use social media in their personal life. But while using their handles, employees should not comment on the company’s policies and related matters which could be potential damage to the company.

However, not everything should be posted online and subjected to restrictions as mentioned in the social media policy. The employee should mention that the views are his/her personal views and avoid any private communication through official mails.

Sanctions in case of breach

Your social media policy apart from the above clauses should also specifically mention the disciplinary sanctions that can be brought against the employees in case of any breach of the provisions of the policy. These actions act as deterrence to prevent any kind of acts/omission that can tarnish the company’s image. Some of the sanctions can be termination of services, suspension, taking the control of the delinquent employee’s account, warning, and deletion of the post along with deduction in salary, prosecution or any other sanction that deems reasonable. It is important to note that the employer should provide genuine reasons for such action to the employee in order to justify the sanction so imposed.

These are some important clauses that should be incorporated into the social media policy. However, a company or an organization may include, add or modify these clauses depending on the working of the company.

Significant case laws

Whitham v. Club 23 Ltd. t/a Ventura

This is a case wherein the employment tribunal highlights the problems that Facebook usage can cause for both the employers as well as employees. In this case, Mrs Whiteman was initially terminated from her services because she posted something which was considered “unacceptable” and allegedly harmed the respondent’s relationship with Volkswagen and breached confidentiality. However, when the matter went to the employment tribunal it was found that the investigation was not conducted in a fair manner and therefore, termination cannot be done.

Plant v. API Microelectronics

Herein, Mrs Plant was employed by API Microelectronics Ltd for 17 years and had a clean disciplinary record. However, she was terminated for her inappropriate and derogatory statements on her Facebook post. As a result of which she breached the social media policy of the company. The employment tribunal found her dismissal fair. This case clearly emphasizes the importance of having a social media policy that gives guidance on the use of social media and sanctions for breach. Moreover, it is the duty of the employers to ensure that the employees are well aware of these policies.

Ellis v. Bank of N.Y. Mellon Corp.

In this case, the plaintiff was an employee at the respondent Bank. She was terminated from her services owing to a post she had uploaded on her Facebook account. She was found to have violated the Bank’s Code of Conduct and its social media policy.

These are a few cases that emphasize the need of having an effective social media policy in place. No company should suffer due to the acts or omissions of its employees due to any social media post.

Conclusion

The main objective of every employee should be to add a valuable contribution to its company. The employees represent the company in different areas and carry its repute wherever they go, be it, physically or on social media platforms. The role of a social media policy can’t be stressed enough. It is usually seen where there are crises, therefore it should be easy and quick to understand. Before it is officially launched it should be reviewed by various stakeholders and modified according to feedback. Most importantly it should be updated and reviewed timely due to the ever-changing market or industry trends. A social media policy should be instrumental in the growth of the business.

References

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Protection of civil servants and doctrine of pleasure in India

By

Abanti Bose

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October 23, 2021

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

This article is written by Prachilekha Sahoo pursuing LLM from National Law University, Odisha. The article has been edited by Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

The origin of the doctrine of pleasure can be traced back to England to the Latin phrase “durante bene placito (during pleasure)”. It is a common law rule having special prerogative of the British crown. In England, a servant of the crown holds office during the pleasure of the crown and he can be dismissed from the service of the crown at pleasure. The tenure of the office of a civil servant can be terminated at any time without assigning any cause. Even if there exists any special contract between the crown and the civil servant concerned, the crown is not bound by it.

The civil servant is liable to be dismissed without notice and he/she can’t claim damages for wrongful dismissal or immature termination of service except where it is otherwise provided by a statute. The justification for the rule is that the crown shouldn’t be;

Bound to continue the public service of any person whose conduct is not satisfactory.
Shackle its future executive action by entering into an agreement in matters concerning the welfare of the country.

The doctrine of pleasure is based on public policy. Its operation, however, can be modified by an act of Parliament.

Doctrine of pleasure in India

In India, the doctrine of pleasure has not been completely adhered to, rather it has been modified to suit the needs of the country. This doctrine has been incorporated in Article 310 of the Constitution of India. Article 310(1) reads as follows:

“except as expressly provided by the Constitution, every person, who is a member of defence service or of a civil service of the Union or of an All India Service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, the state holds office during the pleasure of the Governor of the State.”

In our constitutional set-up, when an office is held during the pleasure of the President, it means that the officer can be removed by the authority on whose pleasure he holds office, without assigning any reason. The authority is not obliged to assign any reason or disclose any cause for the removal. Article 310 also makes it clear that though a person serves the Union or a State during the pleasure of the President/Governor, the power of removal at pleasure is subjected to the other express provisions of the Constitution.

Pleasure under Article 310 is not required to be exercised by the President or the Governor personally. It may be exercised by the President or the Governor acting on the advice of the Council of Ministers. In another case, it was decided that the pleasure of the President or the Governor under Article 310 is not subject to any contract and cannot be fettered by contract, ordinary legislation, or the rules made under Article 309.

What is the implication of the doctrine of pleasure?

The Supreme Court has justified the pleasure doctrine on the basis of ‘public policy’, ‘public interest’ and ‘public good’ insofar as inefficient, dishonest or corrupt persons, or those who have become a security risk, should not continue in service.

Under Article 310, the government has the authority to penalize any of its servants for misconduct committed not only in the course of official duties but even for that committed by him in private life. The government has the right to expect that each of its servants will abide by certain values of decency and morality in his private life. If the government were not able to do so, there would be an appalling fall in the moral prestige of the administration. Thus, disciplinary action can be taken against a police constable (for example) for behaving crudely and improperly with a member of the public in his private life.

What are the exceptions to the doctrine of pleasure?

The term except as expressly provided by the Constitution provided in Article 310(1) clearly states that the Doctrine of pleasure is subjected to other express provisions of the Constitution. Article 310(1) will not apply where the constitution expressly provides for secured tenure different from that provided in Article 310 and hence those servants shall be excluded from it. The following persons have constitutionally secured tenure as follows:

The Supreme Court and the High Court judges. (Article 124 and Article 217 respectively);
The Comptroller and Auditor-General of India (Article148);
Chairman and Members of Public Service Commission (Article 317) and
The Chief Election Commissioner (Article 324).

The doctrine of pleasure does not apply to the holders of these offices. However, they can be removed from the office on the grounds of ‘proved misbehaviour’ or ‘incapacity’ by following the procedure provided by the constitution.

Other offices subject to the doctrine of pleasure

The President and the Governor of the State have been vested with the administrative power of the Union and of a state concerned respectively. The President and the Governor have a fixed term of five years since the President is the executive head of the country while the governor is the executive head of the state. However, the difference that lies in the tenure of the governor is that he can be removed from his office earlier because he holds his office during the pleasure of the President. This doctrine of pleasure has no protection and in a number of scenarios, the Governors have been dismissed by the President indiscriminately. There are no safeguards presented to him. Similarly, the union ministers and various state ministers have real executive power and hold office during the pleasure of the President or a Governor as the case may be.

Likewise, the Council of Ministers of the National Capital Territory of Delhi holds office during the pleasure of the President though it is accountable to the Legislative Council. The Attorney General of India and the Advocate General of each state also hold office during the pleasure of the President or the Governor as the case may be.

Comparative analysis of the doctrine of pleasure under Article 310 and Common Law

In Britain, the doctrine of pleasure is a Common Law doctrine. It can be altered by Parliament by law. In India, it is a constitutional doctrine and cannot be transformed by ordinary legislation.
In Britain, a civil servant has no right to bring suit against the Crown for arrears of salary. The assumption underlying this rule is that the only claim of the civil servants is on the bounty of the Crown and not for a contractual debt.

The Supreme Court of India refused to abide by the abovementioned rule in the case of the State of Bihar vs Abdul Majid. A sub-inspector of Police was dismissed from the service on the grounds of cowardice and later he was reinstated in service but the government contested his claim for arrears of salary for the period of his dismissal. The Supreme Court upheld his claim for arrears of salary on the ground of contract or quantum meruit, i.e. for the value of the service rendered.

The Supreme Court again reiterated the above ruling in the case of Om Prakash v State of Uttar Pradesh where it was held that when the dismissal of a civil servant was found to be unlawful, he was entitled to get his salary from the date of dismissal to the date when his dismissal was declared unlawful.

In India, therefore, a civil servant will get his arrears of salary if his dismissal is found to be unlawful.

Civil servants and the doctrine of pleasure

The legislature has constituted commissions at the Central and state levels (UPSC/SPSC) to regulate the employment and working conditions of civil servants, supervise appointments and promotions and endorse the value of public service. It is an independent constitutional body in the sense that it has been directly created by the constitution. Articles 315 to 323 in Part XIV of the Constitution contain elaborate provisions regarding the composition, appointment and removal of members along with the independence, powers and functions of UPSC. Under the provisions of Article 309, Parliament is authorized to regulate the prerequisite conditions of service of persons appointed to public service and posts in connection with the affairs of the Union. Similarly, State Legislatures are parallelly given the same powers to regulate recruitment and conditions of service of persons appointed to public service or posts in connection with affairs of the State.

The term ‘civil servant’ includes members of a civil service of the centre or a state, or of all India service, or all those who hold civil posts under the Centre or a State. A ‘civil post’ means an appointment or office on the civil side and includes all personnel employed in the administration of the union and the states.

The origin of Indian civil services can be traced back to England when it was officially known as Imperial civil service in the late 18^th century to early 19^th century. It was considered to be an exam for the elite class who, after passing the exam, would be appointed under the crown under Section XXXII of the Government of India Act, 1858, enacted by the Parliament of the UK. It was headed by the Secretary of State for India, a British member cabinet. Thereby, they shall work under the crown’s pleasure. After the Indian independence, the inkling to establish a Public Service Commission for the recruitment of Public Services in the country was first expressed in the memorandum presented to the Committee on the division of functions by the Government of India in 1919. The Royal Commission on Public Services (Lee Commission) in 1924, emphasised the requirement for establishing without delay a Public Service Commission under the Government of India Act, 1919. They planned to allot to the Commission four different purposes; First, the enrollment of employees for public services; Second, proper standardization of qualifications for admission to the services; Third, punitive control and protection of services and finally, advisory roles in regard to the overall service complications.

The Government of India Act, 1935 in Section 264 included that, “there shall be a Public Service Commission for the Federation and a Public Service Commission for each Province”. India attained its Independence in 1947 and framed a constitution according to the ideals of the country. The Constituent Assembly, trusted with this responsibility, did not fail to appreciate the need of a Public Service Commission both for Union and for the Units for purposes of recruitment to the Civil Services as well as for the protection of the interests of the civil servants.

Independence of civil services

The independence of the civil service in giving advice in policy-making and in performing field responsibilities is an important issue that has affected the functioning of the civil services in recent years. In the Constituent Assembly of India, on 10^th October, 1949, Sardar Vallabh Bhai Patel said:

“If you want an efficient all-India service, I advise you to allow the service to open their mouth freely. If you are a Premier, it would be your duty to allow your Secretary, or Chief Secretary, or other services working under you, to express their opinion without fear or favour. But I see a tendency today that in several provinces, the services are set upon and told, “No, you, are servicemen, you must carry out our orders.” The Union will go, you will not have a united India if you do not have a good all- India service that has the independence to speak out its mind, which has a sense of security that you will stand by your word and that after all, there is the Parliament, of which we can be proud, where their rights and privileges are secure. If you do not adopt this course, then do not follow the present Constitution.”

In the early years of independence, in the 1950s and even the early 1960s, the nexus between the political executive and civil service was of trust and non-partisan operatives of the civil service. The trust has finally caved into the segmentation of civil servants and their politicisation in many cases. Two emerging areas of relationship occurred, the first in those, where civil servants tried to preserve their integrity and moral behaviour, and in the second where civil servants would bootlick up to the political executive and cater to their needs irrespective of the service rules, good behaviour or ethical conduct as the partisan class may not advantage them with respect to their assignments, allocations, transfers and, other departmental matters.

The Second Administrative Reforms Commission (10^th report on personnel administration, 2008) had observed, “Often systematic rigidities, needless complexities and over-centralization make public servants ineffective and helpless in achieving positive outcomes and on the other hand, the negative power of abuse of authority through flagrant violation of law, petty tyranny and nuisance value is virtually unchecked.”

The Hota Committee and the Santhanam committee have recognized that much of the deterioration in the standards of probity and accountability within the Civil services can be traced to the practice of issuing and acting on verbal instructions or oral orders which are not recorded. At present, the scheme of handovers, placements, elevations, disciplinary and other non-personnel matters relating to the higher civil services are ad-hoc and non-transparent. Transfers are often used as instruments of reward and punishment, with officials being frequently transferred on the whims and caprices, as well as the personal needs of local politicians and other vested interests. Officers, especially those in the All India services serving in the state governments have no stability or security of tenure, the arena of transfer is backed by entrenched and powerful vested interests, as frequent transfers generate huge amounts of black money for corrupt officials and politicians, both directly and indirectly.

All commissions and committees dealing with administrative reforms have stressed the need for transfers at all levels to be handled in a non-political, non-partisan, open and transparent manner. The Hota Committee had identified the absence of a fixed tenure for officials as one of the most important reasons for tardy implementation of government policies and programs, lack of accountability, waste of public money and large-scale corruption. “Good administration is not possible without continuity and intelligent administration is not possible without local knowledge.”

What are the constitutional safeguards under Article 311?

Article 311 provides a procedural safeguard. This safeguard has existed since the commencement of administrative services in India in the form of rules, but the safeguard was elevated to constitutional status in 1935.

All civil servants hold office during the pleasure of the Crown and are liable to be dismissed without any reason assigned to them at the time of dismissal under the English Common Law. The Secretary of State for the implementation of the doctrine of pleasure, though, outlined rules which, according to the Judicial Committee, were envisioned to serve as a solemn pledge to the services that the rule of pleasure shall not be used in a whimsical and capricious manner. The nature of the rules under the Government of India Act, 1915, were executive instructions and it merely had the force of law. However, in 1919, Section 96-B was introduced by the British Parliament which reiterated the rule of pleasure, subjecting it to certain conditions and was given statutory force to the provision. In later years, after certain modifications, it culminated as Article 311(1) and Article 311(2) in our constitution.

Article 311(1): – According to this constitutional provision, no civil servant is to be dismissed or removed by an authority ‘subordinate’ to the authority by which he was appointed.Dismissal or removal of a civil servant by an authority subordinate to the appointing authority is invalid.

This requirement doesn’t mean that the removal/dismissal must be by the appointing authority himself or his direct superior. It is enough if the removing authority is of the same/coordinated rank or grade as the appointing authority. The dismissal of a civil servant must comply with the procedure laid down in Article 311. The object of the safeguard is that the government servants are entitled to the judgment of the authority by which they were appointed or some authority superior to that authority and that they should not be dismissed or removed by a lesser authority in whose judgment they may not have the same faith. The underlying idea is that a provision like this will ensure to them a certain amount of security of tenure.

Article 311(2):- This safeguard was introduced for the first time in the 1935 Act under (Sec. 240 (3) ) and its scope was interpreted in I.M. Lai’s case. Both the provisions apply to a person who is a member of the civil service of the Union, All-India Services, the civil services of a state or holds a civil post under the Union or a state. The most significant limitation imposed on the doctrine of pleasure is by Article 311(2). According to this provision, no civil servant can be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The concept of ‘reasonable opportunity’ being a constitutional limitation on the doctrine of ‘tenure at pleasure’, Parliament or a state legislature can enact a law defining the content of ‘reasonable opportunity’, and prescribing the procedure for affording the said opportunity to the accused government servant. Pending legislation, rules can be made by the executive for the purpose under Article 309. The concept of ‘reasonable opportunity to show cause’ is synonymous with natural justice. According to the Supreme Court, Article 311(2) gives a constitutional mandate to the principles of natural justice.

Conclusion

The purpose for which Articles 310 and 311 were introduced in the Constitution is still relevant in the light of natural justice principles. In course of time, a feeling developed that Article 311 as interpreted by courts, had come to impose elaborate procedural formalities before a delinquent civil servant could be punished. Fulfilment of these formalities appeared to consume too much time and cause undue delay in meting out punishment to guilty officials which resulted in lowering the standards of employee discipline in government establishments. It was thus thought desirable to keep the doctrine of pleasure enshrined in our constitution to cut down some procedural formalities to expedite disciplinary proceedings against civil servants. It must be borne in mind that civil servants can’t scoff off the law if they are guilty and it is precisely for that reason, that the continued use of the doctrine of pleasure is required in India.

References

Krishna Kumar v Divl Assistant, EE Central Railway, AIR 1979 SC 1912
Govt. of Andhra Pradesh v N Ramanaiah, (2009) 7 SCC 165
Parshotam Lai Dhingra v Union of India, AIR 1958 SC 36
High Commissioner for India v. LM. Lai, AIR 1948 PC 121
UOI v SB Mishra, (1995) 5 SCC 657
http://www.jstor.org/stable/43949606
Sampuran Singh v State of Punjab, AIR 1982 SC 1407
State of Bihar v Abdul Majid, AIR 1954 SC 245: 1954 SCR 786
Om Prakash v State of Uttar Pradesh, AIR 1955 SC 600

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Case analysis : Eveready v. Chadha

By

Oishika Banerji

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October 23, 2021

0

This article has been written by Mohd Aman Khan Afghani pursuing the Diploma in IPR and Media and entertainment law from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho).

Table of Contents

Introduction

The Judgment in the case of M/s Eveready Industries India Limited Vs. Mrs. Kamlesh Chadha was delivered by the Intellectual Property Appellate Board (“IPAB”) on 22.09.2020. This Judgment was delivered by the IPAB after two rectification petitioners were filed in IPAB by the Petitioner with respect to the registration of two Trademarks, i.e. word ‘Eveready’ and the Logo ‘EVEREADY’. Many sections of the Trademarks Act, 1999 were analyzed along with their implications on the similar cases as mentioned above.

Facts of the case

The Applicant in the above case was Eveready Industries India Limited, and it is one of the renowned FMCG Companies incorporated in 20.06.1934 and it is engaged in the manufacturing and trading of dry cell batteries, packet tea, flashlights, CFL’s, insect repellants, etc. It is pertinent to mention that the aforesaid company holds the proprietary rights with respect to the Trademark “EVEREADY” and also are the owner of the same brand name and the are using the above brand name and trademark since 28.10.1942 for their business purposes like for selling their goods and products etc.

It very important to consider here that the aforesaid Company which is the Petitioner/Applicant in the above case was using the Trademark “EVEREADY” for a very long time and this Trademark forms an important part of the aforesaid Company as the whole goodwill of the company is being held by the Trademark “EVEREADY” and this Trademark only distinguishes the products and services of the Applicant company from that of others. The aforesaid company was exclusively using the Trademark “EVEREADY” in an uninterrupted manner in India and throughout the whole world. It is also pertinent to mention that the Company has earned a huge goodwill and reputation with the above Trademark and this Trademark has become a “Well known Trademark ” under the Trademark Act, 1999 under Section 2(1)(zg).

The Petition was filed by the Petitioner as in 1985. The respondent somehow got registered an identical trademark in their favor. Again in 1990, an identical or similar Trademark was registered by the Respondent in respect of goods such as hand tools, screwdrivers, cutting pliers, etc.

So a dispute arose as both the Companies claimed that the Trademark ‘EVEREADY’ belongs to them and as a result, a Petition/Application was filed by Eveready Industries before IPAB.

Issue between the parties

The main issue between the Parties was who is the true owner of the Trademark “Eveready”, whether the Petitioner/Applicant or the Respondent?

Contentions of the Petitioner/Applicant

Petitioner/Applicant contended that the Respondent has got Trademark “Eveready” fraudulently registered in their favour.
Petitioner/Applicant contended that from the start the Respondent’s were involved in such fraudulent practices of registering such well-known Trademarks.
Petitioner/Applicant pleaded that the assignment deed which was signed between Mrs. Kamlesh Chadha and Mr. Sanjay Chadha dated 6.01.2009, was not even valid as M/S Everest Tools was not even in existence at that time.
Petitioner/Applicant contended that the Respondent has filed a false affidavit.
They contended that the Trademarks of the Respondent are supposed to be cancelled as they have admitted that the “Eveready” is a common trademark.
The Petitioner/Applicant submitted that in the suit before Delhi High Court in 2009 against Mr. Kamlesh Chaddha titled as Eveready Industries India Ltd Vs. Mr. Sanjay Chaddha & Anr., wherein the respondents were asked to refrain from using the Mark “EVEREADY ” for goods except for pliers and screwdrivers.

Contentions of the Respondents

Respondents contended that the Trademark “EVEREADY” was their bonafide trademark and they adopted it with honest intention and were using the same until and unless the injunction was granted against them.
They contended that the above trademark was continuously used by them since 1985.
Respondents contended that the Petitioner/Applicant are willing to create a monopoly in their favour with respect to the aforesaid Trademark.
Respondents contended that the Petitioner/Applicant could nowhere prove that they are using the above stated Trademark.
Respondents contended that the Petitioner/Applicant was aware of the fact that the above Trademark has been used since 2000 and therefore the Petitioners were stopped from registering the same.
Respondents also contended that the Petitioner/Applicant nowhere proved that the above Trademark is a well known Trademark.

Reasoning of IPAB in the above case

IPAB has stated that the Petitioner/Applicant were successful in proving that “EVEREADY” is a well known Trademark. IPAB analyzed Section 11 of the Trademarks Act which talks about well-known Trademarks.
IPAN gave the reasoning that sufficient evidence was submitted by the Petitioner/Applicant which proves that the Respondent was wrong in claiming that they were unaware of the Petitioner’s/Applicant’s Trademark.
IPAB cited many cases also in favor of the Petitioner/Applicant.

Judgment by IPAB

The IPAB held that the Petitioner/Applicant was the aggrieved party in the above case as the marks were wrongly on the register of the Trademarks and it was directed by the IPAB that both the Trademarks which were registered by the Respondent should be removed from the Register of the Trademarks and in this way, IPAB allowed the Petition/Application which was filed by the Petitioner/Applicant against the Respondent.

Case analysis

From the facts and contentions and the judgment of the above case, it can be observed that the basic allegation was that of a theft of a Trademark and the theft was alleged by the Petitioner/Applicant against the Respondent. It was also observed that the IPAB has very well considered the evidence of both the Parties and it has also taken into consideration the contentions which were levelled by both the parties against each other. So looking into consideration it seemed as if both the parties were right in their own sphere but after seeing the reasoning of the IPAB and the Judgment it was observed that the registration process hold a very important position or it could also be said that the registration is the process which requires continuous observation and monitoring and each and every aspect has to be seen very critically. The contentions were proved by taking into consideration the dates of the registration, the other issue which was in question was that the Trademarks were identical and similar. In the above case, the Trademark of the Respondent was found to be identical to that of the Petitioner’s/Applicant’s mark and therefore Section 33 of the Trademark Act, 1999 was not to be applied so that the Respondent could take its undue advantage. In the case of Daimler Benz Akteigesselschaft and Anr. Vs. Hydo Hindustan (1994) 14 PTC 0 287, it was held that a person who in a deliberate manner, wants to extract the benefit from someone else’s goodwill or reputation in relation to products, cannot avail protection through Trademark.

On the basis of the facts stated before it and the evidence submitted for it, the IPAB has decided and allowed the rectification and ordered for the removal of both the Trademarks of the Respondent from the Trademark register. However, the important point to note is that the Registrar has not fulfilled his duty under Section 25(3) of the Trademark Act, where it is stated that before the renewal of the Trademark the Registrar is shall send the notice to the Registered Proprietor of the Trademark, and the Trademark was renewed in 1992 and 1999, but after that, no notice was sent by the Registrar and as a result, the Registration got lapsed. It has to be considered that Section 25 has not been complied with and it is a fault on the part of the Registrar. So ignoring Section 25 is something that puts a doubt on the reliability of the Judgment which was passed by IPAB.

Conclusion

IPAB has considered each and every aspect of the case and has taken into consideration every minute detail related to the case. It has also considered each and every contention levelled by the parties against each other,analyzed the legal position as well relevant case laws prevailing in our country so that it can pass a well-reasoned judgment in the current matter. But the issue which was there was pertaining to Section 25 which was ignored in the Judgment and because of that, it can be said that it is the missing thread in the Judgment which was passed by the IPAB. So towards the end, the IPAB can be said to have taken into consideration everything which was required to be considered by it but still ignoring or not considering the compliance of Section 25 of the Trademark Act is something which puts a big question mark on the credibility of the Judgment which was passed by the IPAB.

References

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https://www.indiacode.nic.in/handle/123456789/1993?locale=en

All you need to know about hacking

By

Shoronya Banerjee

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October 23, 2021

0

This article has been written by Hema Modi, pursuing the Diploma in Cyber Law, FinTech Regulations, and Technology Contracts from LawSikho. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho).

Introduction

Recently, a new malware has been reported by a team of researchers which can be found when some of the android apps are downloaded from the Google Play Store. The name of the new Malware is “Vultur” which hacks the screen of the targeted phone and steals banking login IDs and password information from users. The malware screen records the information credentials and hackers use it illegally for unlawful purposes. This malware has affected approximately 30,000 phones and now is the time when we (users) have to be aware and protect ourselves. The above-stated illustration is one of the types of hacking methods used by hackers. This article will be dealing with every aspect of hacking and various penal laws relating to it.

Definition of hacking

Hacking is nothing but identifying weakness in c omputer systems or networks to exploit it to gain access to its data and sources. Hacking is an attempt to invade a private/public/ corporation/organisations network via computer to gather information without permission. In simple words, it is the unauthorised or unconsented access to or control over the computer network and security systems for some wrong or illicit needs and purpose. It is the deliberate and intentional access or infiltration of a computer program without valid consent from its owner. It affects all arms and feet of information and communication technology of an entity. These include threats through the web, communications, and email, social media scams, data breaches, cloud and data storage compromises, and critical data breaches. The sole objective of hackers is to steal confidential data or embezzlement of funds causing business disruptions, etc.

Hacking can be caused in different ways and with the advancement of technology, new methods of hacking are coming up every day. Some of the renowned methods of hacking are discussed below.

Methods of hacking

Phishing – This simply means duplicating the original website to gain access to the users’ information like account password, credit card details etc. It is the most common hacking technique in which the hackers will either send you a fake message with a fake invoice or ask to confirm some personal information or entice the person with some free stuff.
Virus attack – By this method of hacking, the hackers release the virus into the files of the website which can corrupt or destroy the important information stored in our computer if they are downloaded or get inside our computer system.
UI redress – In this method, a fake user interface is created by which when the user clicks on it, it redirects them to another vulnerable website. For instance, if we have to download a song, as soon as we click on the “download” tab, a new page is redirected which is usually a fake website.
Cookie theft – Sometimes, the website containing information about the users in the form of cookies is hacked using special tools. These cookies can be decrypted and read to reveal one’s identity which can be further used to impersonate the person online. Cookies are generally stored as plain text or in some form of encryption.
DNS spoofing – The cache data of a website which the user might have forgotten is used by hackers to gather information about users. Here, a user is forced to navigate to a fake website disguised to look like a real one, with the intention of diverting traffic or stealing the credentials of the users.

After discussing the methods of hacking, it is relevant to discuss the legality of hacking in India.

Indian legal provisions for hacking

Section 43 and Section 66 of the Information Technology Act, 2000 cover the civil and criminal offenses of data theft and hacking respectively.

According to Section 66 of the IT Act, the following are the essentials for an offence to count as hacking:

There should be the malicious intention of the accused to tamper or break into the computer of the other person and steal or destroy its data or sources.
A wrongful act or damage to the data must be done pursuant to the wrong intention.

Also, according to Section 378 of the Indian Penal Code,1860 which relates to “theft” of movable property also applies to theft of any data online or otherwise with the two most important parts of crime i.e., mens rea and actus reus. When a person takes away or steals the information in order to move it away from the access of the authorised user, it can be termed as theft under Section 378 of IPC. If such an act fulfills all the essentials of the theft, the act committed will attract penal consequences under IPC as well.
Furthermore, laws of torts as well, such as trespass to the person and property,can be applied, as well, since there is trespass to a computer system which is an intangible property. Therefore, any kind of unauthorised intrusion in the computer sources governed by a bad intention can come under the purview of criminal trespass which can make a person liable for the tortious liability as well.

Punishment

Under the Information and Technology Act, According to Section 66, the punishment is imprisonment up to 3 years, or a fine which may extend up to 2 lakh rupees, or both.

According to Section 43, liability is to pay damages by way of compensation to the person affected by the stealing of the data. Section 66B entails punishment for receiving stolen computer resources or information. The punishment includes imprisonment for one year or a fine of rupees one lakh or both. The maximum punishment for theft under Section 378 of the IPC is imprisonment of up to 3 (three) years or a fine or both.

Remedies

As soon as cybercrime i.e., hacking is committed, a person should complain about the same to the cyber cell.

Following are the steps to be followed for reporting hacking in India:

STEP 1: Visit https://cyber crime.gov.in/Accept.aspx

STEP 2: Select ‘Report other cyber crimes’ from the menu.

STEP 3: Choose ‘File a Complaint.’

STEP 4: Read the conditions thoroughly and acknowledge them.

STEP 5: Mobile number needs to be registered along with name and State.

STEP 6: Complete all the relevant details about the offence witnessed.

One can also report the offence anonymously.

Indian case laws on hacking

Case law 1: Jagjeet Singh v. The State of Punjab

In this case, it was alleged by the company that some of its ex-employees have stolen their content and databases and transferred it to some other company. The main issue in the case was whether the petitioner can invoke the non-bailable offences under IPC i.e, data theft and hacking?

Verdict – The apex court held that in cases of data theft and hacking, the offences under the Indian Penal Code will also be applied along with the penal provisions of the IT Act, and this would not exclude the application of the IPC. This shows the gravity with which the judiciary has regarded the crime of hacking holding hackers or the culprits liable under two acts i.e., IPC and IT Act.

Case Law 2: Kumar v. Whiteley

Facts

The accused, i.e Kumar gained unauthorised access to the Joint Academic Network (JANET) and deleted, added files, and changed the passwords to deny access to the authorised users which led to a loss of Rs 38,248 to the users.

Verdict

The Additional Chief Metropolitan Magistrate of Chennai sentenced N G Arun Kumar, the accused to undergo rigorous imprisonment for one year with a fine of Rs 5,000 under Section 420 IPC (cheating) and Section 66 of the IT Act (Computer related Offense).

Case law 3: Kamalakanta Tripathy v. Respondent: State of Odisha and Ors.

Facts

In this case, the email id of Madhusudan Padhy, IAS, Transport Commissioner, Odisha was hacked by an unknown miscreant. Through this hacked email, the accused used to send incriminating emails to other people and threaten them.

Verdict

The accused was held liable under Section 66 of the Information Technology Act on the proof that the real accused was culpable as he was hiding behind an alias by masking his own identity. Hence, the Supreme Court observed that the culpability of hacking depends on the presence of mens rea or the object with which the act was carried out for it to be punishable under Section 66 of the IT Act and since considering that the email account of a Senior IAS Officer of the State has been it has been hacked so as to illegally obtain sensitive and confidential documents, the accused is liable for punishment as prescribed under Information Technology Act, 2000.

International legal provisions

Not only India has been facing problems and threats of hacking, but also countries like the United States, Italy, Australia, the U.K, and many more countries have experienced the same. However, countries like the US have well-formulated and implemented stringent laws in order to curtail such acts of illegal stealing of data by hackers. Some of the laws of the US are discussed as below:

Computer Fraud and Abuse Act

The Computer Fraud and Abuse Act (CFAA) is the leading federal anti-hacking law that prohibits and controls unauthorized access to other’s computer systems. Initially, the law was formulated to protect the trafficking of computer systems of U.S. government entities and financial institutions, however, the scope of the Act was expanded after making amendments to include all computers in any part of the country (including devices such as desktops, laptops, cell phones, and tablets). This Act is a comprehensive and exhaustive law that provides and includes all the intricacies like what happens if the accused had attempted to hack the government sources and what will be the penalties if they are caught. Not only this, but it also lays emphasis and provides for the conspiracy and the acts of juveniles in such cases of hacking.

Civil violations under the CFAA

The penalties of CFAA are mostly for criminal-related violations and crimes, however, the 1994 amendment expanded the Act to include cause of action for civil suits, in addition to criminal prosecution.

Civil violations include the following:

To obtain data from a computer and its sources by unauthorized access;
Getting access to a password that can be used to access information on a device;
Transmitting spam; and
Damaging computer data.
Other federal hacking laws.
The Stored Communications Act highlights the prohibitions of the CFAA and protects the stored electronic communications and data (including email, texts, short message services (SMS), social media handles, cloud computing and storage, etc.)

In comparison to India, the laws which are in place to deal with the cases of hacking are not stringent and deterrent in nature in order to curb criminals to commit crimes in the future. Furthermore, the laws of the IT Act and IPC are generic in nature and it becomes difficult for the prosecution to prove liability against the accused.

Preventive measures and safeguards

Apart from the laws and legal measures, there are steps which one needs to follow in order to safeguard ourselves from being a victim of hacking. They are:

One should keep their computers and software frequently updated as outdated programs are more vulnerable to hacking.
One should be up to date with security programs to protect against malware, spyware, etc.
All information on hardware must be deleted and destroyed before selling them.
One must never use open Wi-Fi on their computers, laptops or mobile phones. The Wi-Fi must be encrypted with proper passwords.
One must protect its device by using passwords such as passcode, fingerprints, etc. the timeout setting of mobile devices must be fairly short as mobile devices are treasure troves of information.
Along with passwords, two step authentication and verification process make it difficult for the hackers to take over.
One must never hover over the links or the URLs, if it is not from the person or company claiming to have sent it. It is ideal that if we feel something wrong, we must do a quick search on Google.
One should always keep the data off the cloud.
The device must be enabled with remote location device wiping.
Regular backups of devices must be performed.

Conclusion

As it is rightly said, “It is not that we use technology, we live technology.” This era is indeed known as the technological era and there is no aspect of life that is not touched upon by the technological developments and the comfort in which we are living. But since every coin has two sides, similarly, these developments have both pros and cons. Cybercrime has increased annually and with the advancement, there have been developments in cyber-attacks too.

Therefore, the need of the hour is that the legislative body of India has to also move ahead with the change in the surrounding and frame laws which are effective and useful in curbing the rate of cybercrimes in India. Indian legislature can get inspiration from GDPR (General Data Protection Regulation) of the European Union, Laws from the US, and other countries to frame a stringent and effective law for India. Further, it will be the duty and responsibility of the executive body to implement the laws.

Bibliography

Vultur Malware Uses New Technique To Steal Banking Credentials, https://techilive.in/vultur-malware-uses-new-technique-to-steal-banking-credentials/.
What is Hacking? Introduction and Types, GURU99, https://www.guru99.com/what-is-hacking-an-introduction.html#:~:text=A%20Hacker%20is%20a%20person,with%20knowledge%20of%20computer%20security.&text=He%2Fshe%20breaks%20into%20computer,them%20to%20the%20system%20owner.
What is Hacking? Common Objectives, Types, and How to Guard Against it, Hackernoon, https://hackernoon.com/what-is-hacking-common-objectives-types-and-how-to-guard-against-it-ab99897ff00b, 4^th March, 2019
Wendy Zamora, 10 ways to protect against hackers, MalwarebytesLABS, https://blog.malwarebytes.com/101/2015/10/10-ways-to-protect-against-hackers/, 10^th October, 2015
Sylvine, Laws Against Hacking in India, iPleaders, https://blog.ipleaders.in/laws-hacking-india/, 1st July, 2016
https://www.indiacode.nic.in/bitstream/123456789/13116/1/it_act_2000_updated.pdf
https://indiankanoon.org/doc/1280620/
Vinod Joseph and Deeya Ray, Cyber Crimes Under The IPC and IT Act – An Uneasy Co-Existence, mondaq, https://www.mondaq.com/india/it-and-internet/891738/cyber-crimes-under-the-ipc-and-it-act–an-uneasy-co-existence, 10^th February, 2020
Swati Shalini, What is Cyber Crime in India and How to file Cyber Crime Complaints?, MyAdvo, https://www.myadvo.in/blog/how-to-file-a-cyber-crime-complaint-with-cyber-cell-in-india/, 12^th September, 2019
Jagjeet Singh v. The State of Punjab, SLP (Crl.) No. 3583/2021.
Kumar v. Whiteley
Kamalakanta Tripathy Vs. Respondent: State of Odisha and Ors., MANU/OR/0134/2020
Hacking Laws and Punishments, FindLaw, https://criminal.findlaw.com/criminal-charges/hacking-laws-and-punishments.html, 2^nd May, 2019
https://www.nacdl.org/Landing/ComputerFraudandAbuseAct
Michael Lewis, 10 ways to protect your privacy online and prevent hacking, Money Crashers, https://www.moneycrashers.com/ways-protect-privacy-online-prevent-hacking/

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Circumstances when notice is not required to be made before adducing the secondary evidence

By

Abanti Bose

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October 23, 2021

0

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

Table of Contents

Introduction

When there is a case going on, the court abides by certain rules and principles for providing proof. Generally, it is both the parties who offer proof within the said rules recommended by law. These said rules are mentioned under the Indian Evidence Act, 1872 which guides the court of law in terms of submitting proof in Court of law or of different types with the exception of wherein it has been avoided by law for now. Section 61 of the act says that either primary or secondary evidence can be used to prove an argument in court. Section 3 of the same act also says that any document for that matter elaborated on the lines of any letters or figures may be used for recording purposes.

Secondary evidence in the Evidence Act

Secondary evidence refers to the evidence which either has been replicated or replaced in place of the primary document. For example, a photocopy or picture of a primary document would still be acceptable in court in the form of secondary proof. The court usually prefers original evidence and discourages the use of secondary evidence at all times. This is known as the Best Evidence Rule. However, in certain situations, the court does allow the use of such evidence.

This can be divided into;

Verified duplicates as covered by the provisions.
Duplicates reproduced from the primary document by a mechanical process.
Duplicates made from or compared with the original.
Counterparts of documents as against the parties who did not execute them.
Oral statements of the contents of a document given by some person who has himself seen it.

Section 76 entails the provisions for certified copies. Further classification has placed copies under photography, lithography, cyclostyle, and carbon copies under the same domain

A photograph is a photograph of something. In other words, if a photograph is a photograph of a subject, it follows that the subject exists .”Digital images, such as digital photographs, are pictures recorded by a digital camera. The images recorded by a digital camera are stored on a memory card. The images on this card can be loaded and stored on a computer to be printed out for later use.

A Photostat duplicate of a letter is a piece of auxiliary proof, and it will, in general, be surrendered in the event that the first is exhibited to have been lost or not quickly available, for a given explanation, it isn’t persuading verification in itself of the genuineness of the substance contained in that.
A duplicate of a mark is a piece of auxiliary proof inside the significance of Section 63 (2) of this Act, being a duplicate made by a mechanical interaction that guarantees its rightness.
A composed duplicate of an alleged bundle deed without charging that the file falls under one of the classes recognized in Section 63 of this Act, couldn’t be held to be optional proof.

When can secondary evidence related to documents be given?

Secondary proof of the presence, condition, or substance of a record might be presented in the accompanying examples, as indicated by Section 65 of the Indian Evidence Act:

When the first is shown or gives off an impression of being in the belonging or force of the individual against whom the record is tried to be demonstrated, or of any individual past the compass of, or not exposed to, the Court’s cycle, or of any individual legitimately bound to create it, and such individual neglects to do as such in the wake of getting the notification presented in Section 66.
When the individual against whom the evidence is made or his agent in interest concedes recorded as a hard copy the presence, condition, or substance of the first.
At the point when the first has been annihilated or lost, or when the party giving proof of its substance can’t convey it in a reasonable period for any purpose other than his own default or disregard.
At the point when the first is of a nature that makes it hard to move.
At the point when the first archive is a public report as characterized by Section 74.
At the point when the first is a report for which a confirmed duplicate is allowed to be given in proof under this Act or some other enactment in India.
At the point when the firsts are composed of countless records or different papers that are hard to examine in court, and the reality to be demonstrated is the amount of the relative multitude of assortments.

Circumstances when notice is not be required in order to render secondary evidence

Secondary proof of the substance of the records alluded to in Section 65 (a), will not be given except when the party proposing to give such optional proof has recently given to the party in whose belonging or force the report is, or to his lawyer or pleader, such notification to deliver it as is recommended by law; and if no notification is endorsed by law, such notification as the Court cobbles together.

Considering that such notification won’t be needed to convey secondary confirmation in any of the first examples, or in any other situation where the Court considers it fitting to do as such:

When the archive to be demonstrated is itself a notification.
When from the idea of the case, the unfriendly party should realize that he will be needed to create it.
When it shows up or is demonstrated that the unfavourable party has gotten ownership of the first by misrepresentation or power.
When the unfavourable party or his representative has the first in Court.
When the unfavourable party or his representative has conceded to the deficiency of the record;
When the individual possessing the report is far off, or not exposed to, the course of the Court.

Admissibility of electronic evidence

There is a major challenge that is faced by the traditional rules for authentication of documentary evidence when it is electronic evidence that is presented. The general rules that are applicable with regard to the presentation of primary and secondary evidence for hard copy paper documents pose a difficulty in application towards electronic evidence. Thus, there was an addition by way of amendment to the Indian Evidence Act, 1872, to include the mechanism of providing a certificate under Section 65(b)(4) for authentication of digital evidence. It was held in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal that there is a mandate to provide 65(b) (4) certificates for admission of electronic documents if the original document is not provided through documents/ device owner’s personal authentication as a witness.

Latest judgment allowing evidence to be produced without application

In the latest case of Dhanpat v Sheo Ram (Deceased) through Lrs. & Ors., the Supreme Court held that there was no necessity as per the condition of Section 65(c) of the Indian Evidence Act to file an application while adducing secondary evidence. It was also held that there can be no denial by the court to consider secondary evidence on the premise that the application for authorization to lead secondary evidence had not been filed.

Usually, as per general practice, lawyers file an application when they have to adduce any evidence to lead on record. However, in the present case, the original will had been lost and a copy of the same was filed as secondary evidence. This was objected to by the opposite party since it had not been filed with the application for authorization for producing the document as secondary evidence.

No case is made when failed to prove the execution of an original document

The High Court followed the ratio in the case of J. Yashoda vs. Smt. K. Shobha Rani and H. Siddiqui (dead) by lrs. vs. A. Ramalingam and came to the conclusion that the defendant failed to prove the existence and execution of the original documents and also failed to prove that he had ever handed over the original of the disclaimer letter to the authorities. Hence, the High Court is of the view that no case is made out for adducing the secondary evidence.

Conclusion

Providing primary evidence in all cases is the general principle of law. However, secondary evidence is also admissible. It is that evidence that can be given in a few instances wherein there is an absence of better evidence. The general principle and law are that secondary evidence cannot be adduced till the time primary evidence is not produced. Secondary evidence and filing of an application seeking permission to lead secondary evidence would not be mandatory. However, an application for leading secondary evidence by a party is not precluded.

References

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All you need to know about the zoom trademark confusion case

By

Shoronya Banerjee

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October 23, 2021

0

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

Table of Contents

Introduction

What comes to your mind when you see the trademark “Zoom”? I believe, post-COVID-19 pandemic, we have all been so occupied with the app that we cannot associate “Zoom” with anything other than Zoom video communication company that has gained worldwide fame for its easy-to-use video-conferencing application. But what if I were to tell you that there exist more than 500 marks at EUIPO that incorporate the trademark Zoom. Shocked? Well, why don’t you try doing a search using the EUIPO search tool?

If you are wondering what’s the whole point of registering a trademark and spending extra bucks when trademark registration doesn’t ensure that other companies will not have a similar trademark? Let me give you the answer. Trademark law has a policy of not allowing registration of identical marks for similar goods and services and as a result, it gives one an option to register an identical mark at a registry which has “no likelihood of confusion.”

In this article, we will aim to understand what registry means by “no likelihood of confusion” through a well-celebrated case of Zoom KK v FaceTec Inc. We will also try to understand the importance of trademark registration by using another example.

Zoom KK v. FaceTec, Inc.

Facts of the case

The dispute was between Zoom KK from Japan and FaceTec, Inc. from Nevada, USA, both of which own the trademark “Zoom”. The dispute dates back to 2016 when FaceTec applied for its ‘Zoom’ trademark with EUIPO in October 2016 under Class 9, covering “security software that allows users to secure and access their mobile device through multi-dimensional facial recognition identification”.

To this application, Zoom KK filed a notice of opposition on the basis that the FaceTec application infringes on its already registered trademark ‘Zoom’, which Zoom kk got registered in 1999 under classes 9 and 15. To Zoom kk’s utter shock, the EUIPO opposition division and later the Board of Appeals dismissed its opposition confirming the absence of likelihood of confusion hence that led Zoom KK to appeal at CJEU.

Proceedings at Court of Justice of the European Union (CJEU)

The prominent set of rules this dispute revolved around was Article 8(1)(b) of Regulation No. 2017/1001 wordings which state that on receiving opposition through the proprietor of an earlier trademark, the disputed/contested mark may not be registered, because of its identity with, or similarity to, the earlier trademark and the identity or similarity of the goods or services covered by the two marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trademark.

To prove that, Zoom KK contested that both marks are related to “downloadable computer programs” in Class 9 having a high probability of similarity and further argued on the similarity of trade channels targeting similar customers.

Considering the arguments, CJEU affirmed that the Board of Appeal acted wisely in concluding that it was of vital importance to compare the functions of software and programs and that each of the descriptions of the goods refers to a specific and distinct intended purpose. The goods covered by the FaceTec mark are aimed particularly to secure access to mobile devices through multi-dimensional facial recognition identification, whereas the goods covered by the Zoom KK mark are devices for recording, transmitting, or playing music and videos. It became evident at the first instant that goods provided under both marks did not aim at the same consumers nor were complimentary within the meaning of case law.

The CJEU and the Board of Appeal also made a global assessment of the likelihood of confusion, which, according to case law (judgment of 12 June 2007, OHIM v Shaker, C-334/05 P), concerns visual, phonetic, or conceptual similarity of the signs at issue, that is based on the overall impression given by those signs, bearing in mind, in particular, their distinctive and dominant elements. Therefore, the perception of the mark by the average consumer of the goods or services plays a crucial role in this assessment. The Board of Appeal firstly, as also CJEU in the present case, found that both marks in question were practically identical, as they are composed of the single word “Zoom”, whereas the earlier figurative mark Zoom consists in a stylized form, so they, therefore, display a high degree of similarity.

Decision of CJEU

Anyhow, the CJEU after detailed scrutiny upheld the decision of the Board of Appeal and ruled that there is no likelihood of confusion between the two marks. The court stressed the fact that there lies dissimilarity of goods between the contested marks as one pertains to software and other deals with computer programs. The court was of the view that since relevant consumers for such goods are attentive public with a high level of attention, they will not make the connection between both the marks and hence won’t be confused. This was all the more so because “Zoom” actually has a common meaning in English for sound-related goods, and therefore as rightly pointed out by the Board of Appeals there lies a below-average distinctive power for sound related to goods.

Admittedly, the CJEU also acknowledged the argument that the distribution of the goods in question is being made available through the same distribution channels and was a factor that requires attention. To this, CJEU concluded later that if- as in the present case- a variety of software or programs with completely different functions can be found in the same shops, this does not lead to a likelihood of confusion for consumers, hence the argument was abandoned.

The court, therefore, dismissed the action in its entirety and upheld the decision of the Board of Appeal, which had also found no likelihood of confusion between the two Zoom marks. Hence, the case law makes it clear what registry means by “no likelihood of confusion” and displays the points that one should be keeping in mind while registering a trademark or filing a trademark infringement case.

Importance of trademark registration

That brings us to our next question as to why exactly is trademark registration important? To answer this let me brush up on your memory and bring forward a widely covered case from early 2020 that includes your favorite video conferencing platform Zoom.

Zoom Video Communications, the company behind Zoom video conferencing services, which we have all been using for work meetings, exercise classes, meeting with friends, and classes, skyrocketed since the start of the covid-19 pandemic in its value. Due to its mass usage, Zoom Video Communication has received unprecedented interest amongst the investment fraternity and as a result, has witnessed a huge inflow of investments flowing in its pocket. However, the Security Exchange Commission realized that highly enthusiastic investors were also mistakenly buying up stock in Zoom Technologies having a confusingly similar trademark to that of Zoom Video Conferencing.

Zoom Technologies a company that researches, develops, and sells electronic communication products for mobile phones having a “ticker symbol ZOOM”, came into the limelight on March 25, 2020, when the Security Exchange Commission suspended its trading in securities because of concerns relating to adequacy and accuracy of publicly available information concerning it. There were issues of financial irregularities involved with Zoom Technologies and concerns of Zoom Technologies trademark “ZOOM” capitalizing on the mark of Zoom Video Communication in the stock market.

Considering the popularity of Zoom Video Communications since the start of the Covid-19 pandemic and concerns about the adequacy and accuracy of publicly available information concerning Zoom Technologies, Inc. (“ZOOM”), including its financial condition and its operations, if any, in light of the absence of any public disclosure by the company since 2015; Security Exchange Commission announced the temporary suspension, pursuant to Section 12(K) of the Security Exchange Act of 1934 (the “Exchange Act”), of trading in securities of Zoom Technologies, Inc. (“ZOOM”).

Noting the above case, it becomes crystal clear that registering a trademark is extremely important not only to prevent intellectual property rights but also to save oneself from embroiled legal disputes as it’s common to find similar trademarks coexist in the marketplace.

Conclusion

The trademark registry allows registration of similar trademarks based on various factors and trademark owners should keep in mind that their registration in a particular mark will not give them sole right over all the classes except in very specific cases; like the mark being well known.

The trademark registry also aims for promotion and expansion of trade and it doesn’t stop one from registering his trademark just because there lies another identical mark registered with the registry, but provided they are dealing in non-similar goods. Unless the mark has the likelihood of confusion, there can be an identical trademark registered simultaneously with the registry.

Does that mean one should not spend on trademark registration since it provides limited protection? The answer to that is crystal clear from the Zoom Video Communication highlighting the importance of trademark registration.

Intellectual property law has established mechanisms to protect the rights of both trademark owners and the bonafide users of the mark. These mechanisms also help the users to identify the source of goods/services in which they are interested.

References

(1)https://curia.europa.eu/juris/document/document.jsf?text=&docid=243632&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=23882285

(2) https://curia.europa.eu/juris/showPdf.jsf?docid=63427&doclang=en

(3) https://www.sec.gov/litigation/suspensions/2020/34-88477.pdf

(4) Zoom, ZOOM, or ZM? Trademark’s confusion cases – Lexology

(5) Zoom Confusion: A Case for Trademarks (morse. law)

(6) FaceTec prevails in ‘Zoom’ trademark case | Biometric Update

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Conservation of native languages – need of the hour

By

Diva Rai

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October 23, 2021

0

p020gxyj — Image source - https://bbc.in/3m45drV

This article is written by Udita Prakash, a law student at UPES, Dehradun. This article deals with the importance of the native language, the danger faced by the people using their native language, and the reason why people have abandoned their native language.

Table of Contents

What are native languages

Languages are important in our lives as they play an important role in communication and understanding each other. Most of the time, the term native language refers to the language that we learn in early childhood because it is spoken by our family and/or the language of the area in which the child lives. It is also known as mother tongue or arterial language. With the advent of globalization, it has become imperative for us to explore foreign languages. But it should not urge us to alienate our native language. Language is not only a means of communication but also a powerful tool for preserving our culture and heritage. When a language dies, so does part of the culture.

The effects of globalization are like indigenous peoples (also known as First Nations peoples) losing or are at great risk of losing their native language in Canada. According to a UN report, at least 43% of the more than 6,000 languages spoken around the world are at risk. India alone has about 600 potentially endangered languages.

Importance of native languages

As education is the baseline of learning in schools around the world, students are inherently at a disadvantage because classes are not taught in their native language. Teaching in the native language is important for optimizing student success for many reasons.

The development of the student’s first language promotes the development of the second language. In other words, learning a second language is much easier when the student already has a solid foundation in the first language. Knowledge and skills can also be completely transferred from one language to another.

Teaching in the native language also helps students’ general well-being. Students enjoy school and are happier and more successful when taught in their native language. In contrast, students who are taught in a language other than their mother tongue are more likely to fail in first grade or drop out of school altogether.

Schools usually teach in one of the national languages of the country. For example, Burundi declared that English is one of the national languages, so more schools are being taught in English. This gives urban students more privileges than rural students. Students in urban areas are more likely to already speak or at least be exposed to the language. Rural students are much more isolated and often enroll in school knowing only the language spoken at home.

In Mongolia, the Kazakhs are the largest minority. Until 2005, teachers received only textbooks written in Mongolian, even if they taught in Kazakh.

In Botswana, schools teach only in English and Tswana, national and minority languages.

Students are required to take and pass exams in these languages, as these languages are also a core subject of the national curriculum. This is detrimental to indigenous children enrolling in school without prior knowledge of English or Tswana.

In India, there are more than 600 languages spoken. There are 22 languages included in the Eight Schedule of the Indian Constitution.

There are few places where native languages are being used for the official purpose or the teaching at schools, but most of the places English as the language is used in spite of the native language. To avoid the extinction of the language, the United Nations introduced International Mother Language Day in 1999. It is celebrated on February 21 of each year.

Dangers faced by native languages in the modern world

Languages are endangered for many reasons. Some are because of culture. For example, many cultures are either colonized or dominated by another culture. This often resulted in the removal of the native language from the native culture. If these conditions last long enough, then languages get rejected or only spoken in secret, or disappear altogether. There are many examples in North America where indigenous peoples, now known as First Nations people, have lost or are at great risk of losing practical knowledge of their native language.

In other cases, the language may decline or die on the spot, or in other environments, it may remain weak. We can see an example in the immigrant community from New York to South Africa who needed to change their lifestyle and thus, also the language. Also, many dying languages can be difficult to preserve if their traditions are predominantly verbal and there are few written records.

Another loss in a foreign language has far broader consequences than a simple loss of vocabulary. Even if archived, dead languages may lack colloquialism, accents, grammar, syntax, and context. These linguistic features are often used to reflect the speaker’s thinking as much as the actual choice of words.

Losing a language can also mean losing important knowledge about history, culture, and even the local environment of a language group. For example, the ability to choose different words for plants and the soil in which they grow can be lost to scientists, botanists, and scholars if these particular explanations do not have equivalent words in a more predominant language. It also provides some information.

Why people abandon their native language

People abandon their native language for various reasons. One reason is the children of the family do not learn the language. There are many reasons why people do not learn their parents’ native language such as in the case of immigrant parents often advising their children to speak the language which is spoken by the people around them. They do not want to face the problems for the children and to be treated as the one who does not belong to that place. Children of immigrant parents may also refuse to speak their native language for fear of being teased at school. Sometimes parents just don’t speak the language at all.

One may not be able to control whether their child speaks the family’s native language, but not taking the trouble to learn the language that the family speaks is not only socially harmful, but also culturally irresponsible.

Factors endangering native languages

The factors responsible for endangering the native languages are as follows:

Cultural, political, or economic alienation

It creates a strong incentive for people to abandon their language (for themselves and their children) and favour another, more authoritative language. An example of this is assimilation education. This is often the case when indigenous and ethnic groups that were once previously colonized and/or conquered are likely to gain employment and/or acceptance in the network in order to achieve higher social status. Cultural and linguistic features of other groups with sufficient power imbalances to be culturally integrated through various means of coercion within and outside the group. Examples of this type of danger include Welsh in England, Scottish Gaelic, Scots in Great Britain, Irish and English in Irish, Sardinian in Italy, Ryukyuan and Ainu in Japan, and Chamorro in Guam. This is also the most common cause of language danger.

As the Indian government adopted Hindi as the official language of the Union Government, Hindi has inherited many Indian languages. Other forms of cultural imperialism include religion and technology. Religious groups either believe that the use of a particular language is immoral, or put pressure on believers in a language that is the approved language of that religion (such as Arabic as the Quran’s language). Cultural hegemony may arise not from the history of previous domination or conquest, but from increasing contact with a larger and more influential community through better communication compared to relative isolation centuries ago.

Urbanization

The movement of people to urban areas can force people to learn the language of their new environment. Over time, later generations lose their ability to speak their native language, putting them at risk. When urbanization occurs, new families living there are pressured to speak the common language of the city.

Intermarriage

This can also endanger the language, as there is always pressure to speak each other’s language. This can lead to children speaking only the most common languages spoken between husband and wife.

Preservation of native languages in India

India is a huge country in Asia and occupies a strong position mainly due to its population and geographical region. It is not surprising that so many languages are spoken with such great power. Due to the wide variety of languages spoken, there are no obstacles to the medium of communication between national speakers. Also, most people in India speak Hindi, English, and their native languages.

The communication between the people here is mostly in the English and Hindi language. People do not use their native language in the workplace, the main reason for this is that people think the language which is spoken by them is the inferior one and to look best among the crowd one has to speak the English language in spite of the native language.

Constitutional provisions

Although our constitution has identified Hindi in Devnagri Script as the official language, we have taken many steps to protect other languages. In addition to Hindi, there are 21 official languages recognized by the Constitution as intended languages under Eight Schedule of the Constitution of India.

There are constitutional provisions related to the protection of the language. Among all, the most important ones are as follow:

Article 29 of the Constitution of India protects the interests of minorities. The article states that “… the section of citizens who have their own language, script or culture reserves the right to preserve it.”
Article 343 deals with the official languages of the Indian Union. According to this article, Devanagari letters must be Hindi and the numbers must follow the international format of Indian numerals. This article also establishes that English will continue to be used as the official language for the 15 years since the Constitution was enacted.
Article 346 deals with the official languages of interstate and interstate and federal communications. This article states that an “approved” language will be used. However, we can use Hindi if two or more states agree that the communication is Hindi.
Article 347 empowers the President to recognize a language as the official language of a particular state only if the President is convinced that a significant proportion of the state wants to recognize the language. Such recognition can be made for parts of the state or for the entire state.
Article 350B provides for the establishment of special staff for linguistic minorities. Officers are appointed by the President to investigate all issues related to linguistic minority safeguards and report directly to the President. The president can then present the report to each parliamentary meeting room or send the report to the government of the relevant state.

Scheme for Protection and Preservation of Endangered Languages (SPPEL)

Inspired by the dire situation of lesser-known languages in the country, the Ministry of Education (Government of India) enacted the Scheme for the Protection and Preservation of Endangered Languages (SPPEL) in 2013. The plan is to document and archive the languages of countries at risk or at risk in the near future. The plan is overseen by the Central Indian Language Institute(CIIL) in Mosul, Karnataka. CIIL has worked with various universities and research institutes in India for this mission. At this time, languages spoken by less than 10,000 speakers, or languages that have not been linguistically studied before, are considered primarily documented in this Government of India scheme.

Currently, 117 languages are listed as documentation. It is estimated that documents in the form of grammars, dictionaries and ethnic language profiles for about 500 lesser-known languages will be available in the coming years. Every day, the languages of the whole world are in danger due to various factors. In India alone, the dangerous situation of languages spoken by lesser-known tribal communities is alarming. Language disappears after the danger of language. When the language dies out, the worldview and traditional knowledge system embedded in the language of the community also becomes a parish. SPPEL’s mission is to preserve and preserve digital documents and archive these endangered languages in the country.

National Education Policy and use of the mother tongue

The National Education Policy of 2020 emphasizes the use of the native or local language as the medium of teaching up to class 5 and recommends that it continue until class 8 and beyond. The new National Education Policy (NEP) encourages all students to study three languages at school mentioned under Schedule 8 of the Constitution. At least two of the three languages must be native to India. Example: if Mumbai students are learning Marathi and English, they should choose to learn another Indian language. The choice of language to study depends on the state and the student. However, it is imperative that at least two of the three languages are country-specific, one of which is probably the local/regional language. A statement from the Ministry of Education states that “no language is imposed on any student,” but it is unclear to what extent students can choose a particular language.

Conclusion

Therefore, in conclusion, I must say that language can be recognized as culture. Language plays an important role in the development of indigenous culture. This study points to the fact that language can be used as a tool to protect indigenous cultures. The language is considered sacred to many indigenous peoples. In other words, a language cannot be separated from the culture it represents. Cross-cultural communication, effective cooperation, and mutual understanding have been found to help indigenous peoples maintain their culture, language, and identity. Diversity is one of the main concerns about the need to use appropriate strategies aimed at making a difference in this world.

References

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Well-known trademarks and their impact on prior registered trademarks in India

By

Oishika Banerji

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October 23, 2021

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This article has been written by Gauri Atreja pursuing the Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho).

Table of Contents

Introduction

Companies invest huge amounts of money in establishing their brand names and their marketing. The owners of the brand names spend large amounts of money to build on reputation and popularity to sustain in the highly competitive markets. Companies often spend enormous amounts of money on their brand name establishments and for their mark to be well known so that their marks cannot be copied via other goods and services. The establishment of a brand name as a well-known trademark helps the owner to strengthen their IP protection and to challenge any infringement and misuse of their mark either directly or indirectly in various courts and tribunals.

Infringement of trademarks

A well-known trademark is one that is well recognised by the general public (consumers, manufacturers, and all others involved in the sale and manufacture of branded goods). Because of their recognition, well-known trademarks are easy to recognise and protect, regardless of whether they are registered or not. This reputation safeguards well-known trademarks from infringing products that:

Are an imitation of trademarked goods.
Imitate or replicate the protected trademark.
Make it unclear if the goods and services are imitations or genuine things bearing the well-known trademark.

Though most of these laws apply to infringing products in the same industry as the well-known mark, other nations take into account infringing goods and services that aren’t identical to the protected goods and services. Because well-known or famous trademarks are widely recognised and held in high regard, the substantial protections afforded to them are critical. Even if the infringement operates in a nation where the mark is not registered, these rules assist the mark owner in protecting their intellectual property. This safeguards both the mark owner and consumers, who may be assured that the things they’re buying are genuine.

Even though trademark law does not make any exclusion for renowned or well-known marks, it is easier for their owners to preserve their rights. Legislators are also frequently aggressive in rectifying any infringement that could harm a well-known company’s reputation. The only problem that could develop is if a trademark is well-known in one country but not in the one where it is copied.

Given the nature of our global economy, these regulations are also crucial. Infringers in nearly any country can easily advertise their products and services online by infringing on a well-known mark. The protections given to renowned marks aid in resolving the disputes that arise from infringement quickly, regardless of the infringer’s country of origin.

Definition of well-known trademark

The Trademarks Act, 1999 provides the definition of well-known trademarks. For a trademark to be well known, it has to be recognised by a considerable section of the public in relation to particular goods or services. Well-known trademarks are given special treatment that ordinary trademarks do not enjoy. This is because these well-known brands face distinct dangers and stand to lose a lot if their reputation is tarnished or their mark misused. Details regarding well-known brands and the extra attention they receive around the world are highlighted below.

How to obtain a well-known trademark?

The amended Trademarks Rules, 2017 has provided the proprietors/companies in possession of a well-known trademark an option to directly apply to the Indian Trademarks Registry for determination, declaration and registration of their mark as well-known. Though the provision of protection of well-known trademarks in India was present in the Trade Marks Rules even prior to the amendment in Trademarks Rules, 2017 the court or tribunals had discretionary power to declare the mark as well-known. There was no procedure to apply directly to the Trademarks registry for the same. Though the courts still hold the power to declare the mark as well-known or not, by applying directly to the Trademark Registry, the proprietor or owner of the Trademark at least gets their mark in the well-known category and the Trademarks registry keeps a separate list of such trademarks.

The advantage of having a mark declared as well-known is that the mark is distinct from an ordinary registered trademark in that the well-known trademark is usually known to a substantial section of the public beyond its category of goods and services and it is of significant importance to its proprietor or any business entity.

Process of registration of trademark

The process of registration of a mark as well-known with the Indian Trademarks registry is as follows:

The Registrar shall, while determining whether a trademark is a well-known trademark or not, take into account any fact which he considers relevant for determining a trademark as a well-known trademark including—

the knowledge or recognition of that trade mark in the relevant section of the public including knowledge in India obtained as a result of promotion of the trade mark:
the duration, extent and geographical area of any use of that trade mark:
the duration, extent and geographical area of any promotion of the trade mark, including advertising or publicity and presentation, at fairs or exhibition of the goods or services to which the trademark applies,
the duration and geographical area of any registration of or any application for registration of that trade mark under this Act to the extent they reflect the use or recognition of the trade mark;
the record of successful enforcement of, the rights in that trade mark, in particular, the extent to which the trade mark has been recognised as a well-known trade mark by any court or Registrar under that record

As per the Trademarks Act, the Registrar of Trademarks shall not require as a condition, for determining whether a trademark is a well-known trademark, any of the following, namely: –

(i) that the trademark has been used in India,

(ii) that the trademark has been registered.

(iii) that the application for registration of the trademark has been filed in India.

(iv) that the trademark –

(a) is well known in; or

(b) has been registered in; or

(c) in respect of which an application for registration has been filed in, any jurisdiction other than India; or

(v) that the trademark is well known to the public at large in India.

In view of the aforementioned points, it is apparent that for the mark to be well known, the proprietor of a well-known Trademark need not to carry the business within India and even no prior registrations are required for the protection of a well-known Trademark. On the contrary, there are different regulations for foreign well-known Trademarks.

Impact of well-known trademarks on prior registered trademarks

The Trademark registry has already put on a list for the well-known Trademarks and this list will only grow in number keeping in mind how much companies ought to invest for the protection of their intellectual property. Till date, a total of 90 well-known Trademarks have been registered with the Trademarks registry. The first well-known trademark in the list is “7 O’ CLOCK” by the proprietor Gillette U.K. Ltd., England, for shaving razors. Such a mark was recognised as well-known by the Bombay High Court (reported in 1998 PTC 288 DB). Unlike other trademarks whose goodwill and reputation are limited to a certain specified geographical area and to a certain range of products, well-known trademarks have their goodwill and reputation protected across the nation and across categories of goods and services. It is a law that restricts the Trade Mark Registry to allow and register any mark as a trademark which is deceptively similar to any of the well-known trademarks.

The Indian Trademarks Rules provides protection to the well-known trademarks from the registration of identical or similar trademarks. The Registrar, while considering an application for registration of a trademark and opposition filed in respect thereof, shall have to take into consideration the bad faith involved either of the applicant or the opponent affecting the right relating to the well-known trademark. Also, the registrar has to take into consideration that if the trademark has been registered in good faith disclosing the material information to the Registrar or where right to a trademark has been acquired through use in good faith before the commencement of the Trademarks Act, then, that shall not prejudice the validity of the registration of that trademark or right to use that trademark on the ground that such trademark is identical with or similar to a well-known trademark.

Conclusion

Since the process of determining and declaring the marks as well-known has been simplified by the new amendment to the Trademarks Rules, we may expect many more trademarks to be declared as well known in the coming time. Special considerations for well-known and famous marks can assist firms in protecting their intellectual property against these issues both at home and overseas. To try to resolve a situation where a company or individual registers an infringing mark (innocently or otherwise) in a country that does not follow trademark common law, a mark owner can use evidence of use, the fact that the mark is famous or well-known, and whether the infringer acted in bad faith. Though having a well-known trademark provides additional protections beyond those provided by a conventional trademark registration, getting your mark recognised as “renowned” or “well-known” is tough. Furthermore, because there is no universal definition of a well-known mark, even a well-known corporation in one nation may find it difficult to defend its intellectual property in another.

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Role of special courts for speedy trial of company offences

By

Rachit Garg

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October 23, 2021

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This article has been written by Anshi Jain, pursuing a Diploma in Law Firm Practice: Research, Drafting, Briefing and Client Management from LawSikho. This article has been written by Kritika Sharma (Associate, LawSikho) Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

A judge hears a lot of cases per day. Amidst such a large number of cases, matters that are important and require quick and immediate action often get delayed such as offences relating to the transaction of securities, consuming narcotics drugs, violation of the Negotiable Instruments Act, cases of corruption, corporate offences etc. Such matters require speedy trial and expeditious disposal of the cases, for which certain courts or tribunals are required to be established to deal with these particular cases. There is no specific law in India that provides the timeframe for the conclusion of cases. However, the Supreme Court has observed several times that speedy trial of cases is inherent in Article 21 of the Constitution of India. Hence, different courts are established/designated as special courts to ensure the timely disposal of the cases.

These courts try only those cases for which they are established. This unique characteristic of these courts makes them special. The main contention behind establishing special courts for company offences is that the company is a separate legal entity from its members. A company does not run on its own. It works through its members. Any act done by the members in the name of the company affects the company as a whole. Lengthy proceedings and trials would affect the management of the company. Hence special courts are required to dispose of the case quickly so that the company can run smoothly.

What are special courts?

Special courts are established to deal with a particular case or a particular class of cases. Hence, they have limited jurisdiction to try the cases. These courts deal with both civil as well as criminal disputes.

The Special Courts Act, 1979 provides for the establishment of the Special Courts for speedy trial of certain offences. The Central Government has been empowered to establish an adequate number of courts to be called Special Courts, which shall consist of a Judge from High Court who is nominated by the Chief Justice of the High Court in whose Jurisdiction the special court is established, with the concurrence of the Chief Justice of India.

Why are these courts “special”?

These courts are established to try only a particular case or particular class of cases. They are not required to try any suit or case appearing before them unless it falls within the domain and jurisdiction of that court to try that case for which it is established. This unique characteristic makes it special compared to the other regular courts that have jurisdiction to try all cases filed before it. These courts are established for expeditious disposal of certain cases filed before it. Moreover, when a Judge hears the cases relating to a particular class or law, he develops expertise in it with time and delivers judgments faster than those delivered in the regular Courts.

The legislative body has provided for the establishment of special courts through various laws. However, a careful analysis of these laws reveals that the number of courts required and the number of courts established do not seem to parallelize in any way and that the reality and target go mismatched. State and Union Territory governments set up these courts according to the needs of the state for such a court, after consultation with the High court of the region. Hearings are made more quickly in these special courts than in the common courts. They are not required to follow the procedural guidelines. Hence, they are empowered to adopt a procedure that would expeditiously dispose of the case.

Special courts in India

India has several Special Courts and Tribunals established in many States and Union Territories for the purpose of speedy trial of certain disputes. Some of them are:

Family Court
Consumer Court
Labour Court
Revenue Court
Consumer tribunal
Company Law Tribunal, and many more.

Special Courts under Companies Act

Chapter XVIII under the Companies Act, 2013 contains provisions relating to the Special Courts, specifically Sections 435 to 438 and Section 440. The Report of Companies Law Committee chaired by Shri Tapan Ray noted that the establishment of Special Courts would enable faster prosecution of defaulting companies. The Central Government is empowered to establish Special Courts for the purpose of providing speedy trial of offences under the Companies Act, 2013. The Special Court shall consist of a single Judge holding the office as a Sessions Judge or Additional Sessions Judge for offences with imprisonment of two years or more, such as fraud including repayment of the debt, or failure to pay dividend knowingly; however, in other offences, he shall hold office as a Metropolitan Magistrate or Judicial Magistrate First Class.

The Central Government would appoint him with the concurrence of the Chief Justice of the High Court in whose jurisdiction the appointed Judge is going to work. The Act further empowers the Judicial Magistrate and Executive Magistrate to detain the offender or forward the offender to the Special Court without any detention. The Special Court can even have the summary trial for offences with imprisonment not exceeding three years. It may also revert to the regular trial after fulfilling the conditions prescribed in the Act.

NCLT and NCLAT

To adjudicate on corporate disputes such as liquidation, insolvency, and winding up of the company, there was a need to have a uniform and codified code. The Central Government set up the Justice Eradi Committee to reform the laws related to corporate disputes. The Committee recommended the need to constitute National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT) to act as the uniform bodies for adjudicating corporate disputes. The constitution of NCLT and NCLAT was challenged on the ground that they are unconstitutional. However, the Supreme Court in Madras Bar Association v. Union of India and Anr. (2015) 8 SCC 583 held that the constitution of both NCLT and NCLAT is constitutional and valid. The legislature is empowered to establish tribunals as an alternative to courts for deciding specialized cases, provided that the tribunals are competent as the courts which they sought to replace.

The difference between NCLT and Special courts lies in the fact that the former is a judicial body having the power of a Magistrate with jurisdiction to try the cases whereas the latter is a quasi-judicial body.

What are the Company offences?

The Companies Act, 2013 provides certain corporate governance norms that an incorporated company is required to follow. These norms are made to protect the interests of the stakeholders. Violation of these norms is defined as an offense and the Act prescribes the penalties along with the offense. No one, literally no one, whether it be an individual or an entity, follows any rule or order unless it is sanctioned by law. In the absence of sanctions, some entities would either try to make gains on the cost of the stakeholders’ rights or violate the corporate rules. Thus, the protection of the rights of the stakeholder becomes crucial. The presence of attentive and vigilant stakeholders ensures the compliance of the norms by the company. The law should illustrate the rights of the stakeholders and the means of their protection and redressal. It shall be the duty of the State to ensure proper enforcement and implementation of the laws prescribing the rights of the stakeholders, as mere framing of the laws does not suffice. Any violation of the corporate governance norms that affect the rights of the stakeholders should be taken seriously and strict and stringent penalties should be enforced for the same to deter any further violation.

Types of company offences and complaints before the Court

There are certain acts that are considered offences under the Companies Act 2013. They can be categorized into cognizable and non-cognizable offences. Only the offense covered under Section 447 is a cognizable offense. All other offences under the Act are non-cognizable. These offences relate to accounts of company; audit and auditors; management and administration; share capital and debentures; public offer; meetings of the board and its directors; inspection, inquiry, and investigation; prevention of oppression and mismanagement, winding up; removal of names of companies from the register of companies; incorporation of a company and its matters incidental to it; declaration of payment of dividend, etc. According to the Act, only the shareholders or members of the Company, Registrar of Companies, a person authorized by the Central Government, and the person authorized by the Securities and Exchange Board of India (SEBI) are the recognized complainants.

Why is speedy trial required for offences?

In Salomon v Salomon & Co. Ltd. (1897), it was held that the company is a separate legal entity distinct from its members. A company is formed by members and managed by the Board of Directors with the assistance of officers and employees. On incorporation, the law gives a separate legal entity to the Company. The Company’s money and property belong to the Company and not to its members. There exists a corporate veil between the company and its members. Human ingenuity started using this veil deliberately as a cover for fraud or improper conduct. Hence it became necessary to lift the veil and look behind the company to identify the real people who control it. Hence any act done in the name of the company is actually done by its members. So the Companies Act, 2013 provides for penalizing and punishing all those members who were in charge of the company and deliberately and knowingly violated the corporate norms. Hence the members and directors who run the company are sued. Lengthy proceedings and delayed order and judgment seriously affect the management and administration, as the people responsible for managing the company are sued and they have to attend the court sessions. Then the company with other members and employees have to suffer. Thus, it becomes crucial to dispose of the case as expeditiously as possible.

Conclusion

The Special Courts are established for the sole purpose of providing speedy trials of offences. But it can be seen that neither an adequate number of Courts are established, nor do they dispose of the cases expeditiously. In the matter of Serious fraud investigation office and ors. and Rahul Modi and ors. (2019), the Special Court held that according to Section 212(3) of the Companies Act, the investigation should be completed within the specified time. But if the investigation cannot be done on time, the authority can extend the time accordingly.

This clearly shows that the goal to provide a speedy trial is far to be realized. There seems to be no difference between regular courts and special courts in this respect. The special courts need to be presided by the expert and well versed in that particular law or class of cases. This would enable the courts to realize their goal and dispose of the matter timely. Further, the establishment of an adequate number of courts is required.

References

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

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