Section 15 of the Hindu Succession Act 1956 : gender bias and the need for reform

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October 15, 2021

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This article has been written by Ashutosh Singh, a student of BA.LLB(Hons) at Amity Law School, Amity University, Kolkata. The article analyses the ambiguity, and gender bias around the intestate succession of a deceased Hindu female in India.

Table of Contents

Introduction

A civilization’s worthiness can be judged from the standing that women have in that period. From the Vedic times, the status of women in Indian society has always been considered secondary to that of the men of the society or family. Hindu women have suffered inequality in terms of rights related to their inheritance throughout history. Justice Sujata V. Manohar has said that several legal reforms have been implemented since independence in India, regarding women’s rights which include an equal share of daughters to property, however, the equal status still remains elusive.

In India, the subject of inheritance is governed by the personal laws which govern how the property of a person is inherited. In addition, there are state laws that govern the inheritance of certain assets such as land. It can be seen that many societal issues develop from personal religious laws along with gender inequality. This presence of various religious laws is being described increasingly as legal pluralism. In this context, matters of inheritance of property amongst Hindus, Sikhs, Jains, and Buddhists, are governed by the Hindu Succession Act, 1956(HSA). The confusing and vague status of religious personal laws operates to legitimize the continued denial of equality to women in matters of family law as it generates a space for rules or laws to operate that are not compliant with the constitutional requirements and yet are enforced by the state. Religious personal laws with their ambiguous status serve to legitimize the continued denial by the state of gender equality to women in family law matters, such as in succession rules. This article will throw light on the present status of Hindu women with respect to their inheritance of property and whether Section 15 of the HSA, 1956 needs to be amended to grant gender equality to Hindu women.

Hindu succession laws

The Hindu Succession Act has provisions for property rights and inheritance. The classical law period in India was from 1860-1937 and it brought about one of the first significant changes concerning the laws for females in a Hindu undivided family (HUF). In Hindu Women’s Right to Property Act, 1937, a new law was passed regarding widows stating that no widow could ask for partition, but the widowed mother could receive a part of the share when there was a partition between brothers in the family. This was a huge development regarding the rights for widows in a HUF and it was stated that the right to partition would be given to widowed mothers. This gave the widows the right to step into the shoes of the deceased coparcener, but this right was limited and didn’t give them the right to alienate whenever they wanted to.

Strangely, this move was not accepted by the majority of the population of India, it even received a backlash from certain parts of the community. However, this was the first step towards women getting equal rights as regards properties. In the state laws, the inheritance of farmland by women is not allowed to keep from the fragmentation of land. Also, there is an option such as the first right of refusal, which means that if a legal heir wants to sell their piece of land then the siblings get the first right to purchase that land at the market value.

Moving onto the Hindu Succession Act, 1956, when the amendment was made in the Hindu Women’s Right to Property Act. This was one of the most significant developments concerning female rights to property in a HUF. In the amended Act of 1956, in the class 1 heirs, widow, mother, and daughter were also included which meant that the widow, daughter, and mother would also be first in line to get property in case a partition takes place in a HUF. After the amendment, Sect i on 14 of the 1956 Act would have a retrospective effect on females including widows. The Section states that any property owned by a female Hindu, whether acquired before or after the commencement of the 1956 Act shall be held by her as a full owner. This means that the ownership was not just in a limited capacity. This was a prodigious step that enabled women in getting equal rights with respect to property in India. Section 2 of the Hindu Succession Act 1956 says that this Act applies to anyone who is a Hindu, Jain, Buddhist, Sikh by religion.

This Section does not apply to the Scheduled tribes covered under the meaning of Article 366(25) of the Indian Constitution. The Hindu Succession (Amendment) Act, 2005 has gone further to grant equal rights and liabilities to women, yet many disputes have arisen about the nature of the amended Act, 2005. The confusion arises whether this law is retrospective in nature or if it has a retrospective effect or not. The other ambiguity is whether the living status of the fathers of the women at the time of the amendment affected the rights of the women. The Hindu Succession (Amendment) Act, 2005 was introduced in India with the aim of amending the previously existing Hindu Succession Act, 1956 to get in compliance with the Constitution of India.

The confusion continues to exist as different benches of the Supreme Court have given conflicting views about these questions in different cases. Relying on such conflicting views by considering them as ‘binding precedents’ is not a way forward and solution to the problem of gender bias. The Union Government brought forth the Hindu Succession (Amendment) Act, 2005 with the understanding of its obligation under the Constitution of India, as well as different international instruments which India has ratified. The amended Act provides for equal treatment of a daughter and a son regarding coparcenary rights. The Sections that were amended were mainly Section 4, Section 6, Section 23, and Section 24 of the HSA, 1956. The doctrine of survivorship was completely abolished and women were given the right to completely dispose of the inherited property at their will without the requirement of permission from their husband or father.

With the amendment of 1956 HSA, there have been progressive amendments in the HSA itself such as:

Section 6 in the amended Act gives the daughters the right to coparcenary in the property of the Joint Hindu Family by birth, acquiring similar rights and liabilities to that of a son. This also gave the daughter the right to seek partition for her share in the Joint Hindu Property.
Deletion of Section 23 of the HSA, 1956 which deprived a female heir from seeking partition of a dwelling house unless she had a male heir to do so for her.
Section 24 of the HSA, 1956 was rescinded by the amendment as it was based on a morally preposterous and egregious assumption that denied the rights of a widow to inherit her husband’s property upon her re-marriage.

Vineeta Sharma v. Rakesh Sharma (2020)

In August 2020, the Supreme Court of India passed a landmark judgment in this case. The Apex Court stated that the Hindu Succession (Amendment) Act, 2005 will now have a retroactive effect. The 2005 Amendment Act, modified Section 6 of the Act to align it with the Indian Constitution which has provisions for gender equality.

Facts: In this case, the coparcener had died before the 2005 Amendment Act came into being, and hence, it was held that the daughter (Vineeta Sharma) was not entitled to a share in the coparcenary property as she was not the daughter of a living coparcener. This is irrespective of the father being alive before the Amendment.

Issues: Whether the 2005 Amendment Act, had considered the daughter to have the same right as that of a son in the coparcenary property? Whether the amended Section 6 of the Act of 2005 is retrospective, prospective or retroactive?

Judgment: Section 6 of the Act was given the correct interpretation by a 3-judge constitutional bench. The Court based on past judgments and authorities said that joint Hindu family property is unobstructed heritage and the right of partition is absolute which is given to a person by virtue of his/her birth. The Court went on to say that obstructed heritage rights are not by birth. It depends upon the death of the original owner of that separate property. The SC overruled its judgment given in the case of Phulavati vs Prakash (2015) and held that coparcenary rights are transferred from a father to a living daughter. They cannot be transferred from a living coparcener to a living daughter. The Court talking about the effects of the provisions of Section 6 said that these provisions are retroactive in nature. They are neither prospective nor retrospective in nature.

Section 6 being retroactive in nature means that on and after 9th November 2005 it is immaterial whether the father is dead or alive for granting equal rights to the daughter as same as the son. This judgment, one can say that it has ended years of uncertainty over the correct interpretation of Section 6 of the Hindu Succession Act 1956.

Kinds of property under HSA, 1956

According to theHSA Act, 1956 there are two kinds of property:

Ancestral property– This kind of property should be undivided at the time it is passed down through four generations of the male lineage.
Self-acquired property– This kind of property is acquired by a person with his earnings and without any assistance of the family funds. The property which is acquired through a ‘will’ is also a self-acquired property.

The Married Women Property Act, 1874

The Married Women Property Act, 1874, is an Act that clearly says that after the passing of this Act, the wages and earnings of any married woman acquired or gained by her shall be deemed to be her separated property if it is gained through:

Employment
Some occupation
By trade
Money or other property acquired by her through any artistic or scientific skill
All her savings shall be deemed to be her separated property

The property rights of Hindu women vary depending on their status in the family and her marital status whether she is a daughter who is married/unmarried/deserted, wife or widow, or mother. It also depends on the kind of property, whether the property is hereditary/ ancestral/self-acquired, land or dwelling house, or matrimonial property.

Relevant constitutional provisions ensuring gender equality

The proposition of gender equivalence is enshrined in the Indian Constitution in its Fundamental Rights and Duties, Directive Principles of State Policy, and the Preamble. The Constitution guarantees women equal rights, and it also authorizes the Union to take effective actions against inequality in support of women. The laws of our country, the various schemes, and initiatives have been aimed at benefiting women in various areas within the context of a democratic polity. The Union Government has also recognized many international treaties and agreements on human rights, to ensure equal protection for women. Although these provisions are in place they are in direct conflict with the personal laws in our country. Everyone must know their rights and remedies in case of violation of the same, especially women who have been exploited throughout the years. The Indian Constitution has steered Indian women into a new era. They no doubt enjoy the same rights as men do, get the same opportunities and openings as men have and are in no way inferior to them. Article 15 of the Indian Constitution provides in mandatory terms that no discrimination can be made based on sex, and special provisions can be made in favour of women as they are a vulnerable section of society. The modern Indian legislation also has helped in stabilizing the position of women and giving them economic independence on par with men.

Article 14 of the Indian Constitution mandates the State to ensure to any individual, equality before the law, or an impartial safeguard of the laws within the country of India. The ‘equality before the law’ is to ensure universal rights that all people, immaterial of their place of birth in the country, ethnicity, gender/race, are alike before the law. On the other hand, ‘equal protection of laws’ guarantees an impartial safeguard of laws for every individual within India.

Article 15(1) mandates the State not to discriminate against any person on the basis of sex, ethnicity, race, caste, or any of them.

Section 15 of HSA, 1956

Rules of female succession are stated under Section 15 and Section 16 of the HSA, 1956. Section 15 of the Hindu Succession Act provides for intestate succession (when one dies without making a will) to a Hindu female intestate’s property. Before ascertaining the share that will go to which legal heirs, it is important to know the origin of the property to know which provisions will apply for the succession of the property. In case the Hindu female has succeeded property and she has children and grandchildren alive then Section 15(1) of the HSA,1956 will be applicable but Section 15(2) is applicable in case there are no children or grandchildren that are alive. If the said property is self-acquired, through will, a gift, stridhan, etc then Section 15(1) will be applicable.

As per Section 15(1) of the HSA,1956, when a female Hindu dies without preparing a will then the devolution of her property is done to the following as per rules set out in Section 16:

Upon the sons and daughters which includes the children of any pre-deceased son or daughter and the husband.
Upon the heirs who are of the husband.
Upon the mother and father of the female.
Also upon the heirs of the father.
Upon the heirs of the mother of the female.

If the property is succeeded by the female from her father’s family then the devolution of the property is done to the heirs of the father. However, if the property is inherited from her husband’s family then the heirs to the property are the heirs of her father-in-law and this is only when the husband is predeceased already.

Omprakash and Others v. Radhacharan and Others (2009)

In this case, Smt Narayani Devi was driven out of her matrimonial house once she got widowed just after 3 months of her marriage. She then returned to live in her parental house where she received education and found employment. In 1996, she died intestate and left behind various bank accounts and huge sums of money in her provident fund. Her mother, Ramkishori, had applied for the grant of a succession certificate. The respondents (sons of the sister of Narayani Devi’s deceased husband) also applied for the same.

The Apex Court here assumed that the contention of the husband’s family not lending any support to the deceased was correct but also opined that just because a case is tough, a different interpretation of a statutory provision would not be invoked which is otherwise impermissible. In this case, Narayani’s mother died, and her brothers became the appellants. The issue, in this case, was whether devolution of self-acquired property of the deceased fell within the applicability of Section 15 (1) and Section 15 (2) of the Hindu Marriage Act, 1956. Section 15(1) lays down the ordinary rules of succession. Section 15(2)(a) provides for a non-obstante clause, when the property is devolved upon the deceased from her parents’ side, on her death the same would relate to her parents’ family. The law is silent about the self-acquired property of a woman. Section 15(1) does not make a distinction between self-acquired property and the property which the woman had inherited. The self-acquired property of a female would be her absolute property and not the property which she had inherited from her parents.

The Court relied on HSIDC v. Hari Om Enterprises (2008), Subha B. Nair v. State of Kerala (2008), and Ganga Devi v. District Judge, Nainital & Ors (2008) to express the well-settled principle of law that sympathy and sentiments will not be the only factor in determining the rights of parties which are clear and unambiguous. The Court held that Sub-section 15(1) of the Act would apply and not Sub-section 15(2) thereof. Sub-section 15(1) would apply only in a case where a female Hindu has died intestate. In such a situation, the normal rule of succession as provided for by the statute must prevail. The Court found no merit in the appeal and thereby, the appeal was dismissed.

Here, the Court granted the property to the very people who behaved cruelly with the deceased and did not maintain the relationship when she needed it the most.

Tarabai Dagdu Nitanware and Ors. v. Narayan Keru Nitanware & Anr.(2018)

In the case, the petitioners had challenged the order which the Trial Court had given contending that the respondent cannot have any share in the suit property because of provisions of Section 15(2) (a) of the Hindu Succession Act, 1956 which says that if a female Hindu has inherited any property from her father/mother, and if she doesn’t have any children of her own then it shall be devolved upon the heir of the father. Over here the deceased’s husband who is the respondent had filed a suit for declaration, partition, and injunction in the suit properties that belonged to the deceased. This suit of properties was received by the deceased from her parents.

The respondent had children (not born to the deceased but from the respondent’s second wife) who were claiming a share in the said property. According to the petitioners, the deceased Sundarabai had died without any issues, and the husband’s children had not been born to the deceased, but to the respondent’s second wife (which he admitted himself). So, these children would then have no share in the suit properties. Section 15(2) (a) of the Hindu Succession Act, 1956 is applicable over here as this provision excludes a husband from inheriting the property which was received by a female Hindu from her parents if she does not have any children of her own or has died issueless.

The Trial Court accepted that the suit property which was received by the deceased, from her parents and since the children were not hers, leads to the fact that Sundarabai had died issue-less or without any heirs and in a situation where a son or daughter is absent, her husband can’t inherit her property, but the property will devolve to the legal heirs of her father. Therefore, the husband had no reason to file a suit for partition of Sundarabai’s property. Lastly, the High Court of Bombay held that if a Female Hindu dies childless or without any heirs then the property which was given to her by her parents would be inherited by her parents and will devolve upon the legal heirs of her father and not the husband.

Gender bias and Section 15 of HSA, 1956

Generally, in India and the world over, the woman goes into the family of her husband after marriage and not otherwise. A woman gives up her natal family ties and assumes her husband’s name after marital ties. Hence, intestate succession for Hindus (females) has taken into consideration this ground reality.

In practice, considering the present Hindu Succession Act, the property of the female is not likely ever to devolve on a female Hindu’s parents, as the list of the husband’s heirs is so exhaustive. However, there is no such provision when it comes to the devolution of a Hindu Male’s property. Also, any property that devolved on a female through her husband would be reverted to the husband’s heirs on her demise. However, similar consideration is not given to a property that a woman acquires through the exercise of her skills. It’s so absurd that on the death of a Hindu female, intestate and childless and with no surviving husband the unrelated distant relatives of the husband’s family have a stronger claim to the Hindu female’s property than her own natal family.

It can be said that Section 15 is extremely discriminatory because the female’s property, even if self-acquired, is not inherited by her core heirs. Further, a Hindu female, who could succeed to an estate of another Hindu female as an heir, has a chance only after the distant relatives of the husband of the deceased female who is not even known to her. Therefore, Section 15 should be considered ultra vires of the scheme of the Constitution and hence invalid.

In contrast, if a Hindu Male dies intestate and childless leaving behind no surviving wife, his wife’s relatives cannot stake any claim in her husband’s property. His mother has the highest priority of succession followed by his father and siblings, distant relatives, etc. however, his wife’s natal family has no claim to the property. This is highly discriminatory.

Mamta Dinesh Vakil v. Bansi S. Wadhwa (2012)

It was argued in the Mamta Dinesh Vakil v. Bansi S. Wadhwa, (2012) case, that the inequality which exists in Section 15(1) of the Act is not based on gender alone, but also on the family ties, and considering this reality the legislature has provided for the heirs of the husband in the woman’s property. The Bombay High Court, in this case, overruled this reason and added that the discrimination in the Section is only based on gender and not on family ties. The Court analyzed the succession scheme/pattern of the male intestates under the HSA,1956 to check the possibility of the argument. It observed that keeping the property within the family was not being taken into the picture because the property of a male Hindu would not be then inherited by his daughters, sister’s sons, and daughters. It thus reasoned that the only basis of this classification was gender.

Gender equality within other Indian succession laws

The two examples given in the Indian law scheme of devolution are more gender-equitable than Section 8 and 15 of the HSA, 1956. The first one is the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 (GSSNIP) and the second is the Indian Succession Act, 1925 (ISA). Goa had become a part of the Union of India in 1961 after the enactment of HSA. The state of Goa was earlier governed by the Portuguese Civil Code in matters related to personal law and the same statute continued to be applicable even after joining the Union of India. The Civil Code of Goa is based on the Portuguese Civil Code which contains the gender-equitable scheme of devolution. The ISA also governs the testamentary succession for citizens of all religions. This statute also governs the intestate succession for all religions other than Hindus, Muslims, Buddhists, Jains, and Sikhs. In the landmark judgment of Mamta Dinesh Vakil v. Bansi S. Wadhwa (2012), the Bombay High Court said that under the ISA the devolution scheme is more reasonable than the one which is prescribed by Section 8 and 15 of the HSA, 1956, this is in spite of the ISA being older. Over here, there are two pieces of legislation and they are compared to Section 8 and 15 of the HSA, this exercise has a two-fold purpose. The first being the comparison, which can produce very useful insights on how one can reform the HSA. Second, is that it acts as a demonstration for making the schemes of devolution in the HSA gender-neutral which would not be a novel idea. Precedents for these kinds of reforms already exist in India.

Constitutional validity of Section 15 of HSA, 1956

Article 15(1) of the Constitution mandates that there cannot be discrimination against any citizen based solely on religion, race, caste, sex, place of birth, or any of them since it is against the principles of the constitution. But not the one which is based on the mentioned grounds along with some other criteria like social and educational backwardness. There exist different laws for different religions but there cannot exist different laws for different sexes.

When the Hindu Women’s Property Rights Act was enacted in 1937, the socio-economic conditions of women were different. But today women hold a good share of personal property many times self-acquired by her and her family ties with her in-laws are the same as with her own family owing to the developing concept of nuclear families. The adoption of a century-old law to modern times and its applicability to women today does not make any sense and presents the possibility of being discriminatory and vague.

The term ‘property is not specifically defined by the Hindu Succession Acts but for the purpose of Section 15 of the 1956 Act, it means the property of the deceased Hindu female heritable under the Act. The property here includes both movable and/or immovable properties owned and acquired by a Hindu female. This could be by inheritance, at partition, by gift, or by purchase.

This Section is unable to differentiate between the property inherited by a Hindu female and the self-acquired property of a Hindu female. It only advocates that if the property is inherited from the female’s husband or father-in-law, it would go to her husband’s heirs. In this situation, if the property is inherited from her father or mother, then in the absence of her children, the property should go to the heirs of her father and not go to her husband.

There is a legislative partiality to a Hindu female intestate’s in-laws over her blood relations. The heirs of the husbands are considered more proximate in relation to an issueless Hindu widow when compared to her paternal and maternal heirs and are given preference in the order of succession to her property. The source of acquisition of property of a Hindu female is a deciding factor in the heirs but so is not in the case of a Hindu male. Gross discrimination can be seen as when a married Hindu male dies, his mother receives equal shares in the property along with his widow and children, while in the case of death of a Hindu female, heirs of the husband rank before even her mother.

Section 15 of the Act is unfair as it has failed to consider the equity of the fate of the self-acquired property of a Hindu female dying intestate. Absurdly, it appears that women would always be subjugated and never venture out to earn money because the legislators while framing the legislation did not envision, at that time, that Hindu females would hold self-acquired property.

Sonubai Yeshwant Jadhav v. Bala Govinda Yadav (1983)

The constitutional validity of Section 15 of the HSA, 1956, in question, was brought before the judiciary in this case. It was held that the object of the legislation was to retain property within the joint family upon marriage which brought males and females together, forming one institution. Therefore, it is obvious then that in recognition of that position when the wife’s succession opened, the heirs of the husband were permitted to succeed. This was as a result of the unity of the wife into the husband’s family upon marriage.

The succession laws are not about those who are entitled to the property only, but also about those who should be disentitled. The 21st edition of Principles of Hindu Law (Mulla) also observes that Section 15(2) is founded on the grounds that property must not pass to the individual to whom justice would not require to pass.

It is ironic that even when the Hindu society is thriving towards gender equality, the succession laws in our country continue to be discriminating, and legislation that discriminates only based on gender should be questioned.

Conclusion

The state cannot make laws that treat people differently on the basis of the distinctions mentioned in Article 15 of the Constitution of India. The HSA discriminates against Hindu women by advocating different rules for the devolution of property held by men and women. These provisions excessively and unfairly select the husband’s family in the structure of devolution as compared to the woman’s own family, even when the property belongs to the woman or is self-acquired by her. The legislation is a resultant of an era when it was implausible for Indian women to own and acquire property. However, these biases continue to be committed upon Hindu women in India even today.

The laws of inheritance in countries like the US and France are written in a gender-neutral language. They do not use words like sons and daughters but instead use gender-neutral words like parents, children, and spouses. Using gender-neutral words can create a legal system where a person is entitled to inheritance irrespective of their gender. This way it is not gender-specific and the existing biases against women can be amended. A similar approach can be taken in India and the gender references in the inheritance laws can be excluded from the statutes and replaced with gender-neutral language. With these changes, an equal and unbiased legal system can be created for all people of the country regardless of their gender.

Silence and self-denial on the part of the Indian women of being subject to unequal property rights reinforce and further perpetuates injustice. Hindu women must be made aware of their property rights through legal literacy campaigns and social awareness programs. This is a necessary step so that they may fight for what is rightfully theirs. Collaborative efforts on the part of the government, non-governmental organizations, the public, and women themselves should be taken up to bring change in the mindset and attitude of people for promoting equal rights based on humanity for achieving gender equality.

References

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Removal of limitation in a child abuse case

By

Shoronya Banerjee

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October 15, 2021

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

Table of Contents

Introduction

People often think that cases of child abuse occur in other families and in other neighbourhoods, but not close to them. However, everyone should be aware that the victims of child abuse come from all socio-economic backgrounds, living conditions and races. Child abuse is regulated in India through the Protection of Children from Sexual Offences Act 2012. According to the National Crime Records Bureau, 109 children were sexually abused every day in India in 2018, an increase of 22 per cent over the previous year. According to the latest NCRB data, 32,608 cases were reported in 2017 and 39,827 in 2018 under the Protection of Children from Sexual Offenses Act (POCSO).

POCSO Act

The POCSO Act, 2012 is a comprehensive law to protect children from sexual abuse and pornography. Provisions related to child sexual abuse, such as special courts, special prosecutors, and persons supporting child victims, require special consideration. In 2018, 21,605 children were molested including 21,401 girls and 204 boys The highest number of child abuses were recorded in Maharashtra at 2,832, Uttar Pradesh in 2023 and Tamil Nadu at 1457. Crimes against children increased sharply more than six times between 2008 and 2018, from 22,500 reported in 2008 to 1,41,764 in 2018, according to NCRB data for 2008 and 2018.In 2017, 1,29,032 cases of crimes against children were registered.

Meaning of limitation period

The period within which a person who has a right to make a claim against another person must initiate court proceedings to establish that right is called the limitation period. The expiration of the limitation period may be a defence of the claim. The maximum period prescribed by statute within which legal action can be taken or a right can be enforced is the period of limitation and claims can’t be enforced beyond that period. A statute may, for example, prohibit any person or legal entity from taking action for breach of contract for more than one year after the breach occurred. This is also called the prescription period.

Laws regulating limitation period

Limitation Act 1963

Section 2(j) “period of limitation” means the period of limitation prescribed for any suit, appeal or application by the Schedule, and “prescribed period” means the period of limitation computed in accordance with the provisions of this Act;

Section 6 states about bar on limitation if person has legal disability
In case of child, the child is a minor so it is legally disabled from filing case until it turns major

Legal disability – The law relating to persons with a legal disability is explained below:

If a person who is eligible to set up or apply for a suit is a minor, insane, or idiot, the restriction on filing a suit or submitting an application will begin at the end of such disability.

Section 5 is an exception by which a person can file case without the prescribed limitation period if it satisfies sufficient cause

Bar of limitation

The theory of sufficient cause to solve the delay- Section 5 of the Limitation Act, 1963 allows for the extension of the prescribed period in some cases for reasons sufficient for the delay. This is known as the “sufficient cause” theory. If the appellant is not satisfied with the court, any appeal or application (not plaintiff or suit) may be accepted after a specified period as long as there is sufficient cause. Section 5 applies to appeals or petitions only. As the sections do not apply to suits, the period of limitation allowed in most suits are 3 to 12 years, while in appeals and applications it should not exceed 6 months. Examples of sufficient reasons: What is sufficient cause and what is not can be explained by the following judicial observations:

The misconduct of the High Court which misled the appellant or his counsel in not submitting the appeal shall be deemed to be sufficient cause under this section.
In some cases, the council’s error in dealing with the delay may be taken into account, but such an error must be honest. Incorrect advice given by a lawyer can lead to sufficient cause in some cases.
Legal error in establishing or exercising the right conferred by law may be considered sufficient cause. However, ignorance of the law is not an excuse, and the negligence of the party or the legal adviser is not a sufficient cause.
Imprisonment of the party or serious illness of the party may be considered as condolence for the delay.
The time taken to obtain attested copies of the judgment order to be followed on appeal or application was considered for a pardon.
The unavailability of the case file to the State Councillor Panel Advocate has no basis for indefinite delay.
The illness of the father caring for the accused is considered to be an adequate and genuine cause.

Criminal Procedure Code 1973

Section 468- Barrier to conducting awareness after the expiration of the limitation period.

(1) No offence under the section specified in subsection (2) shall be considered by any court after the expiration of the term of the limit unless otherwise provided in this Code.

(2) Term of limitation-

(A) Six months, the offence shall be punishable only by a fine:

(B) one year, if the offence is punishable by imprisonment for not more than one year;

(C) If the offence is punishable by imprisonment for a term not exceeding one year but not exceeding three years.

Under Section 468 of the Criminal Procedure Code (CrPC), any offence, including child abuse, is punishable by up to three years in prison within three years of the incident. Section 473– According to the section, an old case will only be considered by the court “in the interest of justice” or “delay in seeking redress” if it is “properly explained”.

Protection of Child From Sexual Abuse Act 2012

Section 19

The Code of Criminal Procedure, 1973 (2 of 1974) states that any person (including a child) who is aware of the possibility of committing a crime under this Act (including a child) is required to provide such information to:

(a) Special Juvenile Police Unit; Or

(b) the local police.

2) For each report filed under subsection (1)

an entry number shall be charged and recorded in writing;
read to the informant;
the police unit shall record in a book to be kept

(3) Where a child submits a report under subsection (1), it shall be recorded in the plain language under subsection (2) so that the child understands the content being recorded.

(4) If the contents are recorded in a language that the child does not understand or where it is deemed necessary, a translator or an interpreter should provide such qualifications and experience and pay the prescribed fee if the child does not understand it.

(5) If the Special Juvenile Police Unit or the local police are satisfied that a child who has committed a crime is in need of care and protection, arrangements should be made to provide him or her with immediate care within twenty-four hours of the report, including taking him or her into the care of a shelter home or nearest hospital.

(6) The Special Juvenile Police Unit or the local police shall, without undue delay, report the matter to the Child Welfare Committee and the Special Court or Court not appointed by the Special Court within twenty-four hours. Of the session, including the care and protection of the child and the steps taken in this regard.

(7) No person shall be liable, whether civil or criminal, for providing information in good faith for the purpose of the subsection.

This section is for reporting offences and no limitation period is mentioned under the POCSO Act, 2012.

Limitation in case of child abuse

Claims are barred by the rules for many claimants and therefore cannot be obtained by civil solutions or remedies
Similarly, the impact of legal limitation periods on claims for child sexual abuse is disproportionate to many other personal injury claims.That is another factor that distinguishes child sexual abuse from other personal injury claims.
Depression, post-traumatic stress or other mental states are caused by abuse. Controversially, a person is denied opportunity for the court to determine their claim for causal reasons. Misconduct seeking compensation is a serious denial of justice.
One issue that has caused concern among victims is that there is a time limit to file such claims. When starting a civil claim, there is no time limit for charging a serious person. But the limitation period as mentioned in CrPC and Limitation Act is 3 years.

Removal of limitation in case of child abuse

In most cases, children are not able to report such crimes because the perpetrators are family members, relatives or close acquaintances. Studies have shown that the effects of child sexual abuse continue until very late in life. To overcome this trauma, many adults began to report the abuse they experienced as children. To deal with child sexual abuse cases, the government introduced the 2012 POCSO Act. This act came into force on Nov 14, 2012

The law defines any person under the age of 18 as minor and defines various forms of sexual harassment, including intrusion and non-penetration assault, sexual assault and pornography, and treating a sexually abused child as a “mentally ill” or family member, doctor or teacher. , When the child is abused by a person who has faith or authority.
The POCSO Act does not provide any limits for reporting child sexual offences.

So, the limitation under CRPC AND Limitation Act should be removed as the POCSO act itself does not prescribe any time limit.

Advantages of removing limitation period

Often children cannot report such crimes because in most cases the perpetrator is a family member, relative or acquaintance. The post traumatic side effects of sexual abuse are often experienced by these children until the end of their lives. To overcome this trauma and get out of the toxic cycle they were drawn into as kids, many adults try to report the abuse they experienced as children.
Many children, while facing sexual abuse, may not even understand what is happening with their body, mind at that time .They may not even understand that sexual abuse they are facing is wrong and not a normal situation .So in turn they may not even tell this to anyone at that age .They may understand only after growing up .So removing the time limit to report cases will help to reduce sexual abuse.

Disadvantages of removing limitation period

If the limitation period for 3 years is not kept, then it will have many adverse effects on the child because as years pass by the child will be more subject to trauma and
The consequences of abuse can be devastating and doctors have stated the effects of child abuse on the physical, intellectual, mental and behavioural development of children.
Physical consequences range from minor injuries to serious brain damage to death. Psychological effects ranging from chronic low self-esteem to severe dissociation. The effects of abuse such as attention problems and learning disabilities to severe organic brain syndromes.
The behaviour of a child, consequences of abuse are from bad peer relationships to abnormally violent behaviours. Thus, the consequences of abuse affect the victims and the community in which they live.
It may also add more burden to police as it leads to investigating many years old cases.
The connection between the cause and consequence of child abuse are problematic, as some factors such as low intelligence in children may help to stimulate abusive behaviour on the part of the parent or caregiver, but childhood can be a consequence of low intelligence and early abuse experiences.

Judgments and recent developments

1. October 2018, the Ministry of Women and Child Development Minister: Maneka Gandhi said that the law ministry had approved a proposal by the Ministry of Women and Child Development to remove the time limit for reporting sexual abuse of children. Maneka Gandhi wrote a letter to the Law Minister asking him to remove the time limit for reporting child sexual abuse and allow her to file a complaint after 10-15 years.

2. Mondi Murali case- The girl who was sexually assaulted in the Mondi Murali case committed suicide. As a result, the victim’s father filed a police report against the defendants, including the college principal, for failing to take action against the defendant. In this case, the court dealt extensively with the legal issue: whether the POCSO law would apply after the victim became a major before her unfortunate death? The court, while pronouncing the judgment, accepted a clear interpretation by examining the legal purpose of the legislation and answered in confirmation. The court made it clear those children who have been sexually abused as adults have a legal right to knock on the court door.

3. Vanka case- In the case of Vanka Radhamanohari (Smt) v. Vanka Venkata Reddy, the SC observed that the courts can disregard the delay not only when the facts and circumstances of the case demand, but also when it is necessary to do so in the interests of justice’.

Conclusion

Legal reform related to the removal of the restriction period is not aligned with the legal system of children’s rights. Following the recommendations of the Royal Commission on Institutional Responses to Child Sexual Abuse, all jurisdictions in Australia have successfully waived the 2017-time limit rules for child sexual abuse claims. Similarly, the state of New York has extended the law restricting child sexual abuse, allowing victims to file a claim up to the age of fifty-five. This drive to reform legal responses to child sexual abuse around the world is inevitably significant in the legal system of child rights.

The fact that juvenile victims and their families do not report the crime of sexual abuse in India can be attributed to the fear of social stigma. The progressive approach outlined in the Mondi Murali case will help address the legal limitations of child sexual abuse cases.

References

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Opposition and revocation of the patent : the nightmare of the patentee

By

Oishika Banerji

-

October 15, 2021

0

This article has been written by Vansh Bajaj pursuing the Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho), and Ruchika Mohapatra (Associate, Lawsikho).

Table of Contents

Introduction

Every child dreams of inventing something in the future, whether it is to make their parents or to flaunt it in front of their peers, there is a good chance you dreamt of this too. But what if your best friend steals and uses your idea of invention and impresses others instead? How would you feel? This would surely turn your dream into a nightmare. In real life however, you and your inventions are safe. No one else can use your invention if it has been granted patent protection. Now, what is patent protection?

Patent protection

The Patent Act 1970, for a limited period, protects the inventor with an exclusive right that allows the inventor alone to exploit the invention economically.

For example, some of the famous patent holders are as follows: –

Christer Fahraeus, the inventor of the C-pen, a pen that decrypts letters, numbers and figures, earned his patent right in 1998. Itcan help to transfer a scanned text to a computer..
Israel Siegel, invented a shoe, no! not a normal shoe but a shoe that activates the air-conditioner compressor as soon as the person takes a step. He earned his patent right in 1946.
Per-Ingvar Branemark made life easy by inventing Titanium Screws and Fixing Teeth. He obtained his patent right in 1993.

Now, we all know that the society in which we live is full of disagreement(s) and counterclaim(s). These disagreement(s) and counterclaim(s) of varying nature prevail amidst various parties. The disagreement and counterclaim(s) also hamper the concept of the patent. Yes, you heard it right. These disagreement(s) and counterclaim(s) may lead to rejection or revocation of the patent.

The breakers in the journey of earning patent protection

The line “if you want to protect your invention you must acquire patent protection” is common and frequently used. Advising someone to acquire a patent is easy but earning patent protection is not as easy as it looks. There are two main hurdles that the person applying for the patent has to overcome to be called a Patentee. The two hurdles are known as pre-grant opposition and post-grant opposition.

Pre-grant opposition: First and foremost, it is important to understand what the words “pre-grant opposition” explains. Opposition can be called disagreement, antagonism, enmity and most important, objection. Whereas the word “pre” means prior or before. So, converting the term “pre-grant opposition” in layman terms will be objecting to the patent before it is granted. Now, the question arises who can and how and on what grounds can someone’s patent be objected to.

The concept of pre-grant opposition falls under the ambit of Section 25(1) of the Patent Act, 1970. It states that any person may oppose the grant of the patent and such opposition shall be raised after an application of a patent has been published and shall be before the grant of the patent. It further says that such opposition, if made, shall be in writing. Since the right to oppose a patent is provided to any person but it does not mean that any person can oppose a patent just for fun, there are grounds for opposition. Such grounds are mentioned under Section 25(1) of the Patent Act, 1970 under sub-section A to K.

The following are the grounds.

The applicant has wrongfully obtained the invention.
Anticipation of the invention by prior publication.
Anticipation by prior claiming in India.
The invention is in public use or knowledge before the priority date.
The invention claimed is obvious and does not involve any inventive step.
The invention for whom the applicant is seeking patent protection is not treated as an invention within the meaning of the Patent Act or is not patentable under the Act.
The complete specification of the invention is not disclosed
The applicant failed to comply with Section 8 or showed materially false information.
When there is a conventional application, the applicant has to make the application within twelve months from the date of the first application for protection for the invention made in a conventional country, if he fails it will constitute as a ground for pre-grant opposition.
The applicant either submits the fake information about the source or geographical origin of biological material or does not disclose it completely.
The invention claimed is anticipated, anywhere in the world, concerning traditional knowledge of any community.

Post-grant opposition: The second hurdle in the road of earning patent protection is post-grant opposition. Section 25(2) explains the post-grant opposition. It says that after the grant of a patent, any person interested may give notice of opposition to the Controller but such opposition has to be given before the expiry of a period of one year from the date of publication of the grant of a patent. The grounds for post-grant opposition are identical to pre-grant opposition.

Throwing some light on Section 25(2) of the Patent Act 1970, it elucidates that the post-grant opposition can be raised only before the expiry of a period of one year from the date of publication of the grant of a patent. It is evident that if no opposition from any person is raised in the mentioned year, the patent will be granted to the applicant and the applicant can take a sigh of relief as he will be called a patentee. However, the difficulties in the journey of the patentee are not yet over.

“Patent once granted may be quashed later”, yes you heard it right. A patent granted to the patentee can be revoked afterwards. What is the real meaning of revocation, how a patent, once granted, can be revoked? Who can revoke etc.?

Revocation of patents

Revocation, in layman terms, means the act of taking back something that has already been granted. The same happens to the patent, which even though once granted can’t be treated as permanent. People, other than the patent holder, are provided with a right of filling a revocation petition if they have issues due to someone’s patent right. Here the people include any interested person who has legally acceptable grounds for revocation of the patent and the Central Government. However, such a person may only raise their voice by filing a petition. The final decision related to the revocation relies on the Intellectual property appellate board (IPAB).

Grounds for revocation

To disagree or to counterclaim, one must have some grounds on which he can rely. The Patent Act, 1970 provides some ground on which an interested person can file a petition under the Intellectual Property Appellate Board (IPAB) or can file as a counterclaim in a suit for an infringement at the High Court.

The following are the sections that provide ground for revocation of the patent;

Section 64 (Revocation of patents): The following grounds come under the ambit of Section 64 of the Patent Act, 1970.

If an identical invention has already been protected by the patent right with an earlier filing date.
If the person provided with the patent is not the original owner and has by misrepresentation or fraud obtained the patent protection, the original owner can seek the remedy of patent revocation.
An obvious invention can’t be shed by patent protection.
A patent can be revoked if granted to a person who is not entitled under the patent act 1970.
If the invention fails to provide the service as specified in specification while applying for the patent.
As per Section 8 of the Patent Act 1970, the inventor is bound to disclose all the information required by the section and if such inventor fails or misrepresent any of the asked information, the patent shall be revoked.
If the invention does not meet the standard of Section 2(1) (j) of the Patent Act 1970, the patent granted on such invention can be revoked.
If an invention lacks newness about prior public use or prior knowledge in such a scenario the patent can be revoked.
Under Section 35 of the Patent Act, 1970, the Controller provides some compliance of the secrecy direction which has to be respected however, if any inventor fails to comply with provided compliances his patent may be revoked.
Section 57 or Section 58 of the Patent Act, 1970 talks about the permission for amendment of complete specifications of Patent, however, if any inventor utilizing fraud obtains the permission under the mentioned section his patent comes at the sake where it can be revoked.
The inventions that come under the umbrella of Section 3 of the Patent Act, 1970, are not eligible to be patented.
If the invention claimed by the inventor is already in the knowledge of any local or native community in India.
The inventor is bound to disclose the geographical origin or source of the biological material used in the invention, if he fails to disclose them appropriately, he may invite an unwanted revocation threat.
In the instances, where the inventor obtains the invention from abroad and that invention is already familiar with the public of India.

Section 65: Revocation of patent or amendment of complete specification on directions from Government in cases relating to atomic energy.

Here, this section empowers the central government with the right to ask the appellate board or the controller to revoke the patent of the license of a patentee and every other person whose name has been entered in the register as having an interest in the patent, if patent acquired by them contradict the sub-section (1) of section 20 of the Atomic Energy Act, 1962 (33 of 1962), which says that no patent can be granted if such patent is for an invention relating to atomic energy. However, the controller may provide the patentee and every other person whose name has been entered in the register as having an interest in the patent an option to make a satisfactory amendment which further does not hamper the sub-section (1) of section 20 of the Atomic Energy Act, 1962.

Section 85: Revocation of patents by the Controller for non-working.

This section pronounces that when a compulsory license has been granted with relation to a patent, the Central Government or any person interested may request the Controller for an order revoking the patent on the following grounds-

That the patented invention has not been worked in the territory of India.
That the reasonable requirements of the public concerning the patented invention have not been satisfied.
That the patented invention is not available to the public at a reasonably affordable price.

Note- Application to the controller by the Central Government or any person interested shall be made after the expiration of two years from the date of the order granting the first compulsory licence.

Section 66: Revocation of patent in the public interest.

Law does not allow any individual to be selfish, i.e if, something you discoveris very beneficial for you, but is harming the public at large or the process through which it gets prepared is injurious for the public at large, the law won’t permit you to continue with your discovery.

Defined under Section 66 of the Patent Act, 1970 “the Central Government believes that something that holds the patent protection is harmful or the mode in which it is exercised is injurious i.e., it may cause prejudice to the general public, may revoke patent protection over such discovery after allowing the patentee to be heard, make a declaration to that effect in the Official Gazette”.

Relevant case laws

Section 66 of the Patent Act, 1970 came into the limelight for the first time in 1994 in the case of a repudiated US company named “Agracetus”. Here, in this case, the US-based company was granted a patent for genetically engineered cotton cell lines. However, after the heavy protest by the farmers against this patent where they stated that “such patent is affecting their basic right as cotton is the prime crop on which they rely and it is affecting the economy of India”, The Central Government decided to revoke the mentioned patent in the interest of public i.e., the central government for the first time exercised its power under Section 66 of the Patent Act,1970.

Later, after a very long period i.e., in 2012, the Central Government, for the second time, exercised their power under Section 66 of the Patent Act,1970. This time the Central Government revoked the patent of Avasthagen. Avasthagen, a company known for producing medicines, had obtained patent protection for a medicine/tonic for controlling diabetes that includes using Jamun, lavangpatti and chundun. Later when the company applied for the patent of the same medicine/tonic in Europe, it was discovered that the patent did claim subject matter disclosed by Traditional Knowledge Digital Library (TKDL).

On becoming familiar with such report made by the European patent office, the Indian patent officer, in the interest of the public, revoked the patent of the Avasthagen by stating that “they did not have access to TKDL database that is why their examiners approved the patent and they explained that as per the traditional knowledge of India, the use of Jamun for the treatment of diabetes have been erstwhile known and is in the public domain through the Traditional Knowledge of India.

Presently, when the whole of mankind is facing unprecedented issues due to Covid-19, where the need for medicine is at its peak, an injection named “Remdesivir” attracts the attention of the medical fraternity. It is believed that the said injection may help prevent COVID. The company that develops the remdesivir named “Gilead Sciences” applied for the patent protection of such injection and has been granted under application number 201727012821 on Feb 18, 2020 in India.

Everything was going smooth till a complaint was lodged by the Cancer Patients Aid Association (CPAA), a charitable organisation, who were of the view that “ in today’s difficult situation, it may be prejudicial to the public interest, if monopoly rights were granted to Gilead Sc. Inc”. The complaint is still pending and is in motion.

At this moment, if we talk about the Cancer Patients Aid Association (CPAA), they are slightly right on their part. In the present scenario, where everyone is dying due to a deadly virus, giving monopoly of the production of medicine to one company may disbalance the public interest, however, we can’t say that it “shall” be revoked because the alternative for this is “granting Compulsory licence” under special provisions mentioned in Section 92 of the Patent Act 1970 is available and can be used. The compulsory license of the above-mentioned medicine will help in the effective and efficient availability of the medicine.

What should be changed with regards to patent opposition and revocation of a patent under public interest?

Although, it is very clear that opposition is necessary to prevent the granting of patents on frivolous inventions, however, it, sometimes, acts as a cruel enemy and makes it difficult to earn patent protection and sometimes important patents also suffer the pain.

From the viewpoint of rights holders, there has been an upsurge in anxiety surrounding the idea that potential infringers might attempt to delay the grant of those patents that conflict with their interests. This anxiety is rooted in the fact that any person can file a pre-grant opposition in a pending application, which risks prolonging the grant of a patent and may increase the burden of additional costs involved in defending this opposition.

On publication of a patent application, the applicant is deemed to acquire similar rights as would be granted on the grant of a patent on that application from the date of publication. However, the applicant cannot file any suit for infringement until a patent is actually granted. Indian law permits any person to oppose a pending application, a procedure that is more elaborate than the third-party representation found in other jurisdictions. The pre-grant opposition involves detailed pleadings where both the opponent and applicant file a statement and reply, along with elaborate evidence. The parties may thereafter opt for a hearing on such opposition and the entire exercise may take a few months before the controller gives a final decision.

Conclusion

The world, in which we breathe, is full of inventions and in the same world, the concept of “stealing of others’ credits” runs at the speed of a bullet train. So, it would be wrong to say that the pre-grant opposition and post-grant opposition should be removed while granting the patent just because many vital or significant inventions suffer. Undoubtedly these oppositions have helped to knock over many waggish inventions till now. It is apparent to say that the law always works for the betterment of the people, if we talk about the Patent Act, to ensure the welfare of the general public, the law has provided a salient right to the people and the Central Government to raise a voice against a patent which they feel is inappropriate and harmful to the public interest.

If such rights had not been available, it may be appropriate to say that farmers would never be able to grow the cotton crop as Agracetus would have had all the rights regarding cotton crops. To wind up this particular debate “whether these laws like pre-grant, post-grant opposition and revocation are necessary or not”? The answer is as straight as an arrow “it was, it is and it will always be important to have the law(s) to monitor the privileges offered to the public, however, what is more important is to modify the laws as per the needs of the society.

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The default bail controversy in the Yes Bank fraud case : a preliminary analysis

By

Oishika Banerji

-

October 15, 2021

0

2G Spectrum Case — Image Source: https://bit.ly/2kKd692

This article has been written by Adv. Nikita Pandit pursuing the Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho. This article has been edited by Zigishu Singh (Associate, Lawsikho), and Ruchika Mohapatra (Associate, Lawsikho).

Table of Contents

Introduction

The main objective of this article is to understand the concept of bail and to understand how it was interpreted in the case of Yes Bank fraud by the Court of Law. Bail is when an accused is released temporarily from the jail while the trial is ongoing before the court and sometimes also consists of the conditions that the accused has to follow during the period of the release. Sometimes he is also asked to pay a certain amount against the release. Cambridge dictionary explains Bail as an amount that the accused has to pay to the court for releasing him till the trial and the payment is for ensuring that he will return for the trial.

Bail as per Criminal Procedure Code, 1973

The Code of Criminal Procedure (CrPC) doesn’t define Bail, but defines ‘Bailable Offence’. As per Section 2 (a) of the Code, Bailable Offence is the one which is shown as ‘Bailable’ in the First Schedule of the Code or by any other law in force and all those which do not come under this schedule are Non-Bailable. Offence means breaching the law or any act which is against the law of the land. It is something that affects the morale of the society. Section 2 (n) of the Code explains offence as any act or omitting to do any act which is punishable by the law.

Section 436 of the Code explains when the Bail should be given to the accused in a bailable offence. When the person committing a bailable offence is arrested or detained by without a warrant by the police officer who is in charge of that police station or if such person is brought in the court or appears there during the custody or proceeding, such person should be given the bail if he is ready and prepared to fulfil the conditions of the bail. If that police officer or Court feels it fit, they may allow the accused to give a bond i.e an agreement or a promise without any surety by another person giving guarantee of the good behavior of the accused that he will pay the amount if there is bad behaviour of the accused while he is left from the jail.

If such a person does not comply with the conditions of such a bond, then the court can refuse the bail on the next hearing, putting the accused behind the bars. In case of bailable offences, bail is the right of the accused and not the discretion of the court. It cannot be denied to the accused. In such cases the police and the courts are bound to release the accused. In R. C. Cooper v. Union of India, the Supreme Court of India adjudged that when a person is detained under the law of the land, he is not deprived of the freedoms granted by Article 19 (1) of the Constitution of India. This article and Article 21 giving the right of life and liberty walk hand in hand and cannot be separated from each other.

Bail in non-bailable cases

Section 437 of the Code explains when the bail can be given in the non-bailable cases. Non-bailable offences are all those offences which are not included in the First Schedule of the Code as given in Section 2 (a) of the Code. If a person accused of such offence is arrested without a warrant or appears before the High Court or Sessions Court, he can be released on Bail. The exception is if there is a reasonable ground to believe that the accused is guilty of an offence which can be punishable by death or life imprisonment.. If such accused is a woman or below 16 years of age or sick or infirm, the court can grant bail if the court feels that it is just and fair.

It is also provided that where the offence committed by the accused or a suspect is punishable for seven years or more under Chapters 6, 16 and 17 of IPC, abetment and conspiracy, if that accused or suspect is released on bail, the court can put a condition of appearance, to ensure that there is no commission of any offence during that time or any other condition as required in interest of justice.

After the trial but before the judgement, in case of non-bailable offences, the court can grant bail without sureties.

Warrant

Warrant, as per Cambridge dictionary means an official document which is signed by the judge or any authorized person which gives permission to the police for searching the home of a person, arresting a person or doing any such act as per the procedure of the law. CrPC explains the Warrant Case in Section 2(x) of the Code which means the offences where the punishment is death penalty, life imprisonment or imprisonment for more than 2 years. So the expression ‘without a warrant’ means the cases where no warrant is needed for the police to arrest a person, which as per Section 2 (c) of the Code is called a cognizable offence. The non-cognizable offence as per Section 2 (l) means the police cannot arrest a person without the warrant i.e. the official permission of the judge.

Cancellation of bail

The court which gives the bail under the Section 437 can also cancel the same and get that person arrested again and commit him to custody. Section 439 gives the powers to the High Court and Sessions Court to Cancel the Bail if it is given unreasonably, without applying the mind, is in violation of law and the freedom is misused after the bail is given. So when there is a chance that the person may tamper with the evidence, interfere in investigation, misuse the liberty, escape from the country, go underground or run away from the sureties, the bail can be cancelled.

Yes Bank case

Facts of the case

This was the case of Rana Kapoor vs Directorate Of Enforcement, CRIMINAL BAIL APPLICATION NO (ST). 4999 OF 2020 and Dheeraj Wadhawan vs Central Bureau Of Investigation, CRIMINAL BAIL APPLICATION [STAMP] NO. 1924 OF 2020. An Enforcement Case Information Report (ECIR) was registered with the Directorate of Enforcement (ED), Mumbai under Section 3 and 4 of the Prevention of Money Laundering Act, 2002. The offence of money laundering is committed under this section when a person indulges in the activities associated with the proceeds or money obtained from criminal activities and shows as if the money is not tainted, whether directly or indirectly or if it is even associated with such acts. The penalty under this Act for such money laundering is imprisonment from 3 to 7 years and fine up to Rs. 5 Lakh and in case of offences associated with arms and ammunition as given under Paragraph 2 of Part A of the schedule, it may extend to 10 years. Under the offence, the supplicant, Rana Kapoor was arrested. CBI also registered an FIR for cheating and criminal conspiracy under Indian Penal Code and for Corruption under Prevention of Corruption Act.

ED case

The contentions were made based on Section 45 of the Prevention of Money Laundering act (PMLA Act). As per the Section, if the person is accused of the offence having penalty of more than 3 years of imprisonment, no matter what is given in CrPC, he cannot be released on bail. The only exception here is if the prosecution is given a chance to oppose the application of release and in case of such opposition, and the court genuinely feels that the accused is not guilty or cannot possibly commit such offence. Also, if such a person is below 16 years of age or is a woman or is sick or infirm, the Special Court can direct to release on bail. It was alleged by Kapoor’s lawyer that since there was no offence made under PMLA, the offence did not come under the Act.

The Bombay High Court held that the witnesses and the evidence certainly shows that Kapoor was indeed engaged in the crime. There appeared to be a scam in YES Bank and DHFL. Kapil Wadhwan and Dheeraj Wadhwan through YES Bank and DHFL were the perpetrators. Kapoor had used his position as Managing Director / CEO of YES Bank to give unlawful financial benefits to DHFL by YES Bank and ultimately get benefits for himself and his family through the companies they owned. It was held that there was a conspiracy between Kapoor and the Wadhwans through DHFL and YES Bank. It was held that this offence was a serious one and there was a huge amount of evidence to prove it as it had caused huge loss to the public fund as the money which the YES Bank had was public money. YES Bank had given the loan in spite of it suffering losses and the witnesses clearly showed how the offence was committed. The bail was rejected for the seriousness the offence carried

The grounds of bail considered were;

· Accusations;

· Severity of penalty;

· Apprehension of witness getting tampered with;

· Loss caused to the public.

The Bombay HC considered the magnitude of the crime committed by Kapoors and Wadhwans, it rejected the Bail to Kapoors.

Default Bail Case – CBI

It was alleged by Wadhwans that the Police Officer’s Report under Section 173 of the Code was not submitted even 90 days after the first remand was over, before the special judge but was only given in registry as per the procedure given in Section 167 of the Code and that they had a right to get default bail. It was also alleged that the case was transferred to Chief Metropolitan Magistrate as the sanction of Government was not acquired before filing a case under Prevention of Corruption Act It was rejected by the Magistrate’s Court.

Satya Narain Musadi And Ors. v. State Of Bihar, AIR 1980 SC 506 gives the requirements of the Police Report under Section 173. If the details are complete, the police report is considered to be complete. It should show the magistrate that the investigation is done of a cognizable offence and sufficient evidence is obtained and the information is sent to the court. It is an opinion of the Investigating Officer. If it contains all the documents and statements of witnesses it is considered as complete. Details of the offence must also be given. This is enough and nothing more is required.

In this case it was held that the police report was complete and is irrelevant that it was filed in Registry and that the Code does not mention whether it is to be filed in Registry or Magistrate. As it was filed in the Registry, the investigation was over. It was held that as the Report was filed on the 60^th Day and it was before the present Bail application, the Default Bail was rejected.

Conclusion

The Supreme Court has rightfully explained in Gautam Kundu v. Manoj Kumar Assistant Director, CRIMINAL APPEAL NO. 1706 OF 2015 that, when it relates to the case of Money Laundering, is a serious threat to the economy and interest of the nation. Personal motive and purposeful benefit made out of such offences cannot be brushed aside, so refusing bail in such cases is not wrong. In this case, whether in the case of ED or CBI, the gravity of offence was severe and the evidence and witnesses clearly showed that the proceeds of crime and tainted money was made by the Applicants. This was gravely dangerous to the utilization of public money by the Bank in any circumstances. In the case of CBI, the Court rightfully explained the complications in interpretation of the Police Report and that the procedures of CrPC cannot be misused by anyone for wrongful defenses. It is also to be noted that PMLA is a special statute and it overrides the provisions of CrPC. In both the cases the bail and the default bail were denied to the Applicants with correct interpretation of laws and with the help of the preceding case laws.

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

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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What is employer-employee patent ownership in India

By

Sneha Mahawar

-

October 15, 2021

0

This article is written by Shohom Roy from Symbiosis Law School, Noida. This article describes the employer-employee patent ownership scenario in India.

Table of Contents

Introduction

Jurisprudential advancement has given birth to intellectual property rights. The law now recognizes the intangible property of individuals and the different intellectual property regimes can now be considered for determining ownership in the employer-employee context. Some of the pieces of legislation like the Copyright Act, 1957 stipulate that when the author of creative work is employed under a contract of service and creates something during the course of his employment, the ownership of copyrights is bestowed upon the employer. However the Patent Act,1970 is silent on the issue of an employer’s ownership over an invention made by an employee during the course of his employment and recognizes only the inventor’s right over an invention. This article analyses the impact of nonrecognition of patent rights over an invention made by an employee utilizing the resources of the employer affects the evolution of intellectual property rights in the country.

What is a patent

A patent is a form of intellectual property right granted for an invention of a product or a process. The inventions fulfill the criteria of novelty, nonobviousness, and usefulness to be eligible for a patent. The present Patents Act, 1970 is a consolidation of the previous patent laws existing in India. The Act specifies the category of inventions not eligible for patents in Section 3 and Section 4. With subsequent amendments, the issues of exclusive marketing rights, compulsory licensing, post-grant and pre-grant opposition have been dealt with. A patent can be filed either by the inventor or by the assignee. A patent creates a right in rem and restricts anyone from making, using, selling, or offering to sell the patented product/process. A patent is valid for a period of 20 years from the date of filing the patent application in India.

Employer-employee patent ownership

Companies invest in research and development to get an edge over the competition in the market. For instance, huge amounts of resources are being employed by the pharmaceutical industry to produce vaccines for COVID-19. It is a common practice to register patents under the company’s name. Thus the legal framework protecting intellectual property rights should be sensitive to the valuable investments made by employers in providing expensive equipment, trade secrets, and financial help to the inventors. However the Patents Act, 1970 is oblivious to the effect of the employer-employee relationship on patents in India. The law considers the inventor to be the ‘first owner’ of the patent which creates a huge risk for the employers. The lack of a provision allowing employers to reap benefits from the investments destroys the spirit of invention and research in the country.

This article elaborates on how pre-invention assignments and the entitlement of an employer over the ownership of a patent on an invention made during the course of employment can safeguard the interests of the employer. Moreover, some foreign laws on employer-employee ownership of patents are studied to provide a better understanding of the international patent laws and pinpoint the flaws in its Indian counterparts.

Are pre-invention assignments enforceable in India

A pre-invention assignment is a mechanism that transfers the right over any future invention from one party to another. Companies involved in technical inventions require their employees to sign a pre-invention assignment that bestows all rights to the employer over any inventions that the employee creates during the completion of normal duties assigned to him.

Most pre-invention assignments consist of an assignment provision, a disclosure provision, and a power of attorney provision. The assignment provision transfers all rights over intellectual property created during the course of employment to the employer. The disclosure provision creates a legal obligation for the employees to inform the employer about every aspect of intellectual property. The employer can exercise his ownership rights over intellectual property through the execution of the power of attorney provision.

The Patents Act, 1970 stipulates the requirement of a contract specifying the rights and duties of the parties in order to file an application for assignment of the right to apply for a patent. The law also mandates a ‘proof of the right to make an application’.The Delhi High Court in the case of Pine Labs Pvt. Ltd v Gemalto Terminals India Pvt Ltd (2011) observed the statutory requirement of ratification of an assignment even after an agreement to assign. The assignment of ownership rights over future works is regarded as an agreement to assign rather than an actual assignment. This principle was established in the field of copyrights law and later extended to patents law. An invention needs to be verified and designated before an assignment can take place. Although the Copyrights Act, 1957 recognizes the right of the employer’s over the work produced by an employee during the course of employment, the law on patents has not evolved to cure this defect. Therefore a pre-invention assignment creates an equitable assignment rather than an actual assignment of rights over a future work. While the interest in the intellectual property passes from one party to one and creates an enforceable right in an actual assignment, an agreement to assign does not create any such right. The unenforceability of pre-invention assignments of patents in India creates an additional layer of procedural formalities. The execution of an assignment provision after the invention allows employees to arbitrarily deny ownership rights over an invention produced during the course of employment. This creates a risk for the employers and allows hostile employees to prevent employers from establishing their right over the inventions they had sponsored.

Patents on work created during the course of employment

The course of employment can broadly be understood as the time period during which an employee performs the normal duties assigned to him as well as the time spent on the employer’s premises preparing to commence or depart from work. While the Copyright Act, 1957 confers ownership rights to the employer over anything produced or done by an employee in the course of employment, the Indian Patents Act, 1970 considers the inventor to be the first and foremost owner of an invention. There exists no provision that allows the Courts to recognize the right of an employer over an invention created during the course of employment. This poses a major problem as employers might be unable to gain ownership rights from an employee subsequently.

In the case of Darius Rutton Kavasmaneck v Gharda Chemicals Ltd (2014), the High Court of Bombay refused to change the legislative defect and lay down a precedent safeguarding the rights of the employers. The Court justified its decision by pointing out that a Managing Director of a company is not supposed to be involved in the field of research and development. Therefore in the present case, the inventor was working outside the course of his employment and the inventions were not a product of the normal duties assigned to him. Moreover, the inventor is the rightful owner of the inventions made by him. It was held that the Managing Director of the chemical company had a legal right to register patents over various inventions and since he had never demanded compensation from the Company under which he was employed there was no reason for the Company to change the present situation of patent ownership.

Employer-employee patent laws in other countries

The United Kingdom

The laws of countries like the United Kingdom, Israel, and China have introduced a provision of ‘deemed ownership’.This provision depends on the principle of ‘duty to invent’ by which an individual is restricted from gaining ownership rights over a piece of work done during the course of employment. Section 39 of the United Kingdom Patents Act, 1977 entitles the employer to an invention made by a person during the course of employment. However, the employer must demonstrate a relevant relationship to seek relief under the Act. In the case of LIFFE v Pinaka (2007), the England and Wales Court of Appeal (Civil Division) had held that inventions made by a person while performing the normal duties assigned to him do not confer ownership rights to the inventor. The Court had opined that the scope of employment and the actions that naturally arise from the duties assigned to him must be considered along with the employment contract. The English law also allows an employee to act as a trustee for the employer in the context of patent ownership. The employee is bound to transfer the patent rights to the employer and the employer is safeguarded with rights to revoke the grant of patent to the employee within a reasonable time and apply for a fresh patent.

According to Section 30(6) (a) and Section 7(2) (b) of the UK Patents Act,1977 a person is entitled to an invention if there exists an enforceable contract between the inventor and the individual before the invention. Thus pre-invention assignments are enforceable in the UK as established by the case of KCI Licensing v Smith & Nephews (2010). The law ensures that the investors are not restricted from their right to exercise ownership over an invention.

Israel

The Israel Patents Act, 1967 establishes ownership rights of an employer over an invention considered to be ‘work-made-for-hire’. The invention must satisfy the conditions of the existence of the employer-employee relationship and transformation of a raw undeveloped idea into a mature invention during the course of employment to be considered ‘work-made-for-hire’. The Act specifies that if the employer does not exercise his right to file an application for a patent the employee-inventor shall be deemed to be the owner of the invention. The law stipulates that the obligation to prove that the invention falls under the category of work-made-for-hire rests with the employer who must provide the employee with fair and reasonable compensation in order to assert ownership rights over the invention.

The United States of America

The United States of America has a jurisprudential tradition of using the concept of ‘shop-right’ to safeguard the interests of the employer. A ‘shop right’ is a non-exclusive license granted by the employee to the employer allowing him to utilize the invention for economic gains without consulting the inventor. The shop right cannot be transferred by the employer, who retains the license even if the inventor sells his ownership rights in the patent. In the case of Goodyear Tyres and Rubber Company v Miller (United States) (1926), the plaintiff company sought specific performance of an agreement by which the defendant was supposed to surrender and transfer his interest in a valuable invention. The invention was made during the course of employment and utilizing the company’s resources. Therefore the Court observed that “ if a company is to be denied the fruits of its success, it will cease to subsidize failure and experimental departments will go”.This principle was reinforced by the case of Standard Parts Co. v Peck (1924), in which the Supreme Court of the USA opined that since the employer had made a substantial financial contribution to the employee’s invention, the employer is entitled to the claim ownership over the invention.

In the case of Board of Trustees of the Leland Stanford Junior University v Roche Molecular Systems, Inc. of USA (2011), an employee-inventor had entered into a contract with the University of Stanford agreeing to assign the rights to his future inventions to the University. Later he had entered into an agreement with a company named Cetus under which he had assigned the rights to the inventions made by him while accessing the resources of Cetus. A procedure was developed to quantify the blood-borne levels of HIV while working under Cetus. While the university had acquired the patent first, another company by the name of Roche Molecular systems acquired the rights to research activities and manufactured a test kit that became quite popular. A dispute arose between the company and the university regarding patent ownership. The Supreme Court of USA passed a judgment that seeks to limit the applicability of the University and Small Business Patent Procedure Act of 1980, to establish that an express provision of assignment between the inventor and a third party must be prioritized over an agreement to assign with a federal contract. Thus the patent ownership was granted to the company instead of the University. However, this raises serious concerns about the ownership of patents by public entities and increases the risk of uncertainty faced by public and private investors.

Employees working especially in the technology industry are given access to the trade secrets of their employers and in order to safeguard the interest of the employer, the holdover provision was introduced. The holdover provision is a post-employment covenant that seeks to make employees acknowledge the inventions made during the course of employment and deter them from using such inventions for personal gain in the future. The holdover clause is enforceable for a reasonable period of time and must not be inserted in a pre-invention assignment with an intention to restrict the right to work.

Conclusion

The lack of sensitization for employer rights in the Indian Patents Act, 1970 shows a major flaw in the law governing intellectual property rights. According to Section 39 of the aforementioned Act, a resident in India must seek the approval of the Controller of Patents before applying for a patent outside the country. This arduous process of seeking approval discourages foreign investment in research and development in the country. The Indian Patent Office has shown a tendency to reject the assumption that the assignment of rights over an invention to an Indian subsidiary is naturally accessible by the parent company. This creates a further hindrance for foreign companies and discourages investment in research and development.

Thus there is no doubt that the Indian Legal system should inculcate the measures implemented by other countries to protect the rights of the employer. The jurisprudence on patent laws must evolve in order to sustain and encourage the growth in invention and development. Establishing the legitimacy of pre-invention assignments and the employer’s control over the employee’s invention can prove to be significant steps to improve the employer-employee patent ownership framework in India.

References

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A glance through Cyber Law V. Cyber Crime in the US

By

Sneha Mahawar

-

October 15, 2021

0

This article has been written by Sagnik Mukherjee pursuing a Diploma in Business Laws for In-House Counsels. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho).

Table of Contents

Introduction

Every scenario has two sides, it is only judicious to look at both and decide if you want to see yourself as a victim or a learner. Borrowing this analogy, COVID has been a disastrous event that will forever be a blotch in our history. However, it has pointed out various vulnerabilities and the need for development in our daily life ranging as far and wide as medical care to government responsibilities and others that need immediate attention to prevent future hazards.

One such sector would be cyberspace. We may have been physically restricted to step outside, but the doors of cyberspace were kept wide open. The global cyber community witnessed a sporadic expansion with much traditional physical work moving online, something that was previously unimaginable. As it is, our reliance on the internet is more than what it has ever been before. A little under two decades ago, having access to the internet was similar to owning a piece of fancy furniture, which you may or may not have the most use for. Yet today basic internet services are critical to earning your bread and butter for a large portion of the population. With the addition of corporations, schools, recreational institutions making a paradigm shift to the online sphere, we are swimming much deeper than ever before and from where it stands the Internet is the first and last resort for most of us. It is therefore extremely important to take a good look at the cyber laws protecting the people today from various cyber-crimes.

Developments in the cybersphere

It would be naive to not acknowledge the impossible possibilities that the internet has actually materialized in this period that has helped propel humankind’s competence to uncharted levels. Nevertheless, it would be equally naive to not talk about the lurking danger in the vast and mostly unexplored meadows of cyberspace.

Continuing with the same analogy of COVID, the determined reproductive rate of the virus is anywhere between two to three times without the practice of social distancing. Thus factoring in a rough population estimate of a state like New York which has approximately eight million people, the infection would double every three days before lockdown.

On the contrary, the reproductive rate of cyber-attacks is twenty-seven times or more once a machine is infected. A devastating computer worm from 2003 known as the Sapphire worm doubled in size in around 8.5 seconds thereby affecting a population of 10 million in or about twenty-four hours.

In 2018, cases of online identity theft were to the tune of 16,128, and non-delivery fraud of objects sold or bought through e-commerce was about 65,116. Considering how most of us were addicted to social media especially during this period of never-ending boredom and feeling of doom, it is quite natural that a large population tends to seek escape and solace in searching for romantic relationships online. The reported losses of victims of romance scams and confidence fraud sit at 92.5 million USD during the peak COVID period in the US. Irrespective of whether you are an individual or a Fortune 500 corporation, cyber victimization does not discriminate.

Although the United States of America has some of the most established and robust laws and security frameworks for cyberspace, every day it faces thousands of crimes committed through the means of computers and its related networks. Through this article, we take the opportunity to glance at the USA’s laws for crimes related to cyberspace.

What constitutes Cybercrime

The term Cybercrime is used as a genus under which, there thrive various species of illegal activities. The end means of which are achieved via unauthorized access and use of computers and computer networks.

For instance, with the advent of social media, a common incident is people commenting with rude or unsavoury words toward public figures or normal individuals for a variety of reasons. Such action over cyberspace can be termed harassment and is classified as a cybercrime. It entails various patterns of online behaviour which are deliberately done to inflict considerable emotional distress to any person who might talk about an unpopular opinion or against the self-determined rights and beliefs of the harasser. Cyber harassment can have an acute impact on a victim’s life too. It leads to psychological and emotional harm, disrupts the victim’s career and reputation along with causing defamation and consequential anxiety. If the victim is a student, it can interfere with their education to a great extent as well. In addition to psychological and social damage, cyber harassment has been found to have led to sexual assaults as well and driven up the suicide rates.

The 1980’s brought with it the dawn of criminal activities that were assisted by computers. The law enforcement agencies quickly felt the heat and found an empty arsenal to fight such crimes.

The wire and mail fraud provisions of the Federal Criminal Code had limited operability and did not provide the full range of tools needed. Congress quickly stepped in and started off by making it a felony to access classified information and financial or credit histories on computers either belonging to governments or institutions without proper authorization.

However, with the passage of time and more sophistication in methods of attack by cybercriminals, Congress made further clarifications and additions to the provisions of laws. It laid down the same in a cumulative form and named it as Computer Fraud and Abuse Act (CFAA) which helped deal with both criminal and civil penalties to perpetrators.

New additions included:-

Penalty for theft of property via computer as a method of defrauding.
Penalty for intentionally destroying data belonging to others.
Expanded the provisions to penalize publicly disclosing stolen information.
Recognizing the act of conspiring to commit computer hacking as illegal.
Broadening the definition of protected computers.

The most recent update to the CFAA includes further seven types of criminal activity

Sr no.	Offences
	Obtaining National Security Information
	Accessing a Computer and Obtaining Information
	Trespassing in a Government Computer
	Accessing a Computer to Defraud & Obtain Value
	Intentionally Damaging by Knowing Transmission
	Recklessly Damaging by Intentional Access
	Negligently Causing Damage & Loss by Intentional Access
	Trafficking in Passwords
	Extortion Involving Computers

Further, the much more regular variety of cybercrimes include hacking, DDOS attack, phishing, distribution of malware, electronic theft, etc.
Therefore, reiterating what we previously stated, encompassing cybercrime within a handful of possible variations is infeasible. Any criminal activities committed with aid of computer or computer networks qualify as cybercrimes.

Is Cyber terrorism an identical twin or a distant cousin of Cyber Crime

Considering how we have till now hammered at the idea that any criminal activity conducted via the means of the cyber domain can be loosely categorized as a species of cybercrime, it is pertinent to mention to the reader that the road does bifurcate into two at a certain juncture.

Cyber terrorism is a different breed altogether. Yes, it is once again achieved via the aid of the cyber domain, however, the mens rea active in this scenario vastly differs from the one present in cybercrime and quite naturally so are some of the tools provided by law to tackle it.

To elucidate the difference further, we shall try to determine the basic accepted idea behind the two terms, i.e. crime and terrorism. In my opinion, “crime” is a more personal complication whereas “terrorism” is a political complication. Terrorism often ends with inflicting widespread damage. The United State statutes define terrorism as “an act to coerce a civilian population, to influence government policy by intimidation or coercion or to affect the conduct of a government by mass destruction, assassination or kidnapping”. Therefore for an act to qualify as cyber terrorism the mens rea behind it has to be represented by that of a specific group’s political, religious, or ideological interests. For instance, in 1998, a Srilankan guerrilla faction sent about 800 emails a day to one of its government organs for a straight period of two weeks. The contents of the email read “We are the Internet Black Tigers and we’re doing this to interrupt your communications”. Cyber security experts recall this as the first known case of a terrorist organization utilizing cyberspace to disrupt governmental activities for self-gain.

Development of the law

Unlike the law enforcement agencies from and before the early 1980’s, the development of laws to curtail criminal activities in cyberspace has developed manifold, all the more considering how cyberspace is a fundamental aspect of America, entwining both its economy and defence. In the aftermath of the Cold War, analysts from the various security agencies of the US started to research and propose the next possible attack on the US and draw attention to various exposures in the defense of its homeland. Hence, as a result of years of investment and meticulous planning, the rules and regulations in effect today are some of the most robust in the world.

The US being a federal structure of governance, chose to tackle these concerns of cyber security and laws at the federal level and through sector-specific rules and regulations.

For instance, crimes related to the healthcare sector are dealt with by the Health Insurance Portability and Accountability Act (HIPAA). The financial sectors are dealt with by the Gramm Leach Bliley Act (GLBA) and the Federal Information Security Act (FISMA).

However, as mentioned earlier the go-to statute for prosecuting cyber crimes remains to be CFAA, and for very good reasons. It encompasses mostly all aspects of typical cybercrimes and provides both a civil and criminal remedy to the aggrieved. Another relevant law would be the Electronic Communications Act (ECPA) which protects communications in storage or while in transit e.g. email services. Again being a federal structure the advantage lies with the states to pass and enact laws that they think can be beneficial for the population of their state. E.g. New York prohibits the use of computers with the specific intention to gain access to its materials and deals out severe penalties such as prison time varying from 4-15 years depending on the severity of the crime.

Overreaching effects of the law

As much as it is there to protect and serve the innocent, sometimes a loose framing, ill-defined, or expansively wide interpretation can have a boomerang effect. Having state-backed law enforcement agencies throwing your liberty and freedom out of the window based on their own set of paranoid allegations is just as bad as being a victim of a crime. The following are an example of the same:

Van Burne vs United States

Former Georgia police sergeant Nathnan Van Burne was convicted under the CFAA for accessing the law enforcement database to search for information regarding a license plate in exchange for money. Unknown to Mr. Van Burne he was in the crosshairs of an FBI sting operation. The charges brought against him were for “intentionally accessing a computer without authorization or exceeding authorized access”. Mr. Van Buren was found guilty by the jury and was sentenced to 18 months in prison. Fortunately, the decision was reviewed and overturned by a 5 judge bench that believed the interpretation used was draconian and stated that if violating terms of service is labelled as a crime without investigating the situation through and through, private companies would put half the nation behind bars by now.

Aaron Swartz

Aaron Swartz was an Internet activist who was indicted in 2011 for allegedly connecting to a network and downloading 2.7M academic copies that were anyway freely available to be downloaded from JSTOR. Although JSTOR did not press any charges for the same, the Justice Department took it upon themselves and charged Swartz with 13 counts of felonies as he faced 50 years in prison and a potential fine of 50M USD.

This indictment could be validated because of the loose framing of the CFAA for a crime that should have at the most attracted a decision of misdemeanour.

Lori Drew

Lori Drew was a middle-aged mother charged with hacking in 2008 for violating the terms of MySpace after she conspired with three other people to open a fake account and bully a girl who had a fallout with Drew’s daughter. The girl subjected to the bullying later went on to commit suicide. Under public pressure, the statutes of CFAA were again interpreted at will, and Lori Drew in absence of any law against cyberbullying was charged with unauthorized access to MySpace’s computers. Although the jury found her guilty, the judge refused the conviction and stated the CFAA was constitutionally vague and would open multiple innocent internet users into criminal charges if this was allowed.

Conclusion

The above article was a brief attempt to differentiate and understand the state of Cybercrime and Cyber laws in the US. Along With an increase in the usage and power of cyberspace, there needs to be commensurate protection via laws against all forms of cyber-crime. Hopefully, through this article, the reader will have an opportunity to grasp some material information regarding the laws in the USA protecting people from cybercrimes and leave with a better picture of the current state of affairs in the matter.

Bibliography

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

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

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All you need to know about gender-based interpersonal cybercrime

By

Sneha Mahawar

-

October 15, 2021

0

This article has been written by Anurag pursuing a Diploma in Cyber Law, FinTech Regulations and Technology Contracts. This article has been edited by Ruchika Mohapatra (Associate, Lawsikho).

Table of Contents

Introduction

When people hear the word cybercrime, the immediate word that pops up in people’s minds is hacking. However, cybercrime is much more than that. After a new revolution took place on the internet with the introduction of various social media and dating applications, cybercrime has taken a new turn and has opened up a new horizon. People often cannot interpret how serious gender-biased cyber-crimes can be in modern times. People who complain about the same, more often than not, are asked to develop a thicker skin. These crimes are often committed against women and therefore, gender-based crimes can be defined as “crimes that are directed against a woman because she is a woman or that affects women disproportionately. Through this article, we are going to discuss everything about gender-based cyber-crimes and understand the laws in place to mitigate such crimes.

What is a gender-biased cybercrime

When we talk about gender-based crimes, crime against women comes to the top of our minds because there have been many instances of such kinds of crimes as rape, sexual harassment, stalking, workplace sexual harassment, and many more. The fact that cannot be neglected is that crimes against women and girls are more in number in comparison to others. Therefore there arises a need to study these crimes because it helps shape effective responses, interventions, and services related to such gender-based crimes and especially cybercrimes because it has been seen that women and girls are most vulnerable to many crimes online as well.

Cybercrimes in themselves are not gender-oriented, it can happen with anyone who has a presence over the internet. However, the internet over the years has become a place where cyber violence and online abuse is often targeted towards women and girls. Moreover, as the name suggests, these crimes with each passing day are becoming more gender-biased. What this suggests is that both genders have the same kind of experience online but some have it worse than others. No doubt about the fact that many men might have also had such experiences, however, the number of women facing issues like these is a lot more and the severity of these crimes faced by women is by far greater. To put this in perspective, NCRB data in 2018 revealed that 6,030 complaints against cyber-crimes were registered by women.

Types of gender-based interpersonal cybercrime

When talking about types of cyber-crimes the list can be endless. However, as we have discussed above, in this article, there is a clear distinction between cybercrime and gender-based cybercrime. Therefore, we will be focusing on gender-based interpersonal cyber-crimes. Hence the types of gender-biased interpersonal cybercrimes are:

Cyberbullying & cyber harassment

Cyberbullying is bullying with the use of digital technologies. It can take place on social media, messaging platforms, gaming platforms, and mobile phones. It is repeated behaviour, aimed at scaring, angering, or shaming those who are targeted.

Illustration: You are with your friends and they accidentally capture an embarrassing picture and then post and spread lies about you is a form of cyberbullying. Cyberbullying and in-person bullying are alongside each other. Moreover, cyberbullying is known to have similar biological reactions to face-to-face bullying.

Cyberstalking

Cyberstalking is the act of persistent and unwanted contact with someone online. It may involve any number of incidents including threats, libel, defamation, sexual harassment, or other actions in which to control, influence, or intimidate their target.

Illustration: You have an Instagram account and an account is continuously messaging when you don’t wish to have their messages. Moreover, you inform the sender you don’t wish to receive messages from them and even then they are persistent, this is a form of cyberstalking. Cyberstalking is an extension of the physical form of stalking. Moreover, it can be even more dangerous than physical stalking as cyberstalkers can easily locate private information about a potential victim with a few mouse clicks.

Online child grooming

Online grooming is where someone befriends a child online and builds up their trust intending to exploit them and cause them harm. The harm caused by grooming can be sexual abuse, both in-person and online, and exploitation to obtain sexually explicit images and videos of the child.

Illustration: If you are talking to a person online and then he becomes your friend and you think you found a friend in him. However, the intention of the other person was just to harm you, this is what you realize after some time. This is online child grooming, anyone could, unfortunately, groom a child online, regardless of age, gender or race. Groomers are very skilled at what they do and can often befriend a child by appearing to have the same hobbies and interests as them. Using fake accounts and photos, they may also appear to be the same age as the child.

Voyeurism

Voyeurism is defined as observing unsuspecting people while they undress, are naked, or engage in sexual activities. However, the act of voyeurism is not restricted to observing, nowadays the act of recording and clicking pictures of the same also qualifies as voyeurism.

Illustration: If you’re changing clothes in the changing room, and some person secretly observes you and clicks your pictures that qualify as voyeurism. It is the most common cybercrime against women after cyberstalking. A key element of voyeurism is that the person being watched doesn’t know they’re being observed. The person is typically in a place where they have a reasonable expectation of privacy, such as their home or other private areas.

Morphing

Morphing means changing smoothly from one image to another image without any corrections. Usually, girls are affected due to morphing of the type where they download girl’s pictures from various social websites through fake or real profiles and then morph them.

Illustration: Everybody is on social media these days. Let’s say that you have uploaded a picture on Facebook, if someone takes your picture and then replaces your body with a naked body the perpetrator can be held liable for having committed the crime of morphing. Morphed images may be used to blackmail the girl or her family by threatening to publish the morphed images.

Sextortion

Sextortion is a form of online abuse, wherein the cybercriminal makes use of various channels like instant messaging apps, SMS, online dating apps, social media platforms, to lure the users into intimate video/audio chats and makes them pose nude or obtains revealing pictures from them.

Illustration: You are in a relationship with a person and during that relationship, you send them sexually explicit images and videos during the time of the relationship, and after it ends they start threatening you regarding those images and videos being published on social media, this a form of sextortion. However, you need not always be involved with that person, recently with technological developments, a person can have access to your phone with only a click on some link or by picking up a wrong number.

Laws governing gender-based interpersonal cybercrime

There are provisions to protect against cybercrimes in The Information Technology Act (IT ACT), 2000 as well as the Indian Penal Code (IPC).

Provisions under IT Act

Section 67, 67A, and 67B of the Act talks about the punishment regarding stalkers and cybercriminals wherein they can be booked for their acts of publishing or transmitting obscene content via electronic form. Moreover, Section 67B, specifically talks about Child pornography being illegal and prohibited in the entire country.

Section 66A of the IT Act was struck down in the year 2015 in the case of Shreya Singhal v. Union of India. wherein it was stated by the Supreme court that because its intended protection against annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, or ill-will fall outside the purview of Article 19(2), and are very vague, the section has been declared as unconstitutional.

There is also a provision for granting protection against voyeurism irrespective of their gender. Section 66E of the IT act punishes the act of voyeurism

Provisions under IPC

Section 345D of the Indian penal code (IPC) deals with stalking. This section particularly deals with anyone that monitors the use of the internet, email, or any other form of electronic communication of a woman wherein his acts are deemed to fall under the purview of committing the offence of stalking.

We have discussed voyeurism with the perspective of the IT Act before. However, it has also been discussed in the IPC under section 354C. The key difference between both the provisions is the fact that voyeurism in the IT Act deals with both genders, however, under IPC, it specifically deals with women.

Section 292 of the IPC deals with publishing and distributing obscene images. Therefore any act involves recording explicit content and publishing it regardless of consent or not. Moreover, using it to gain profit can be punished under the ambit of this section.

Conclusion

Gender-based crimes have finally started getting the attention that they should get as they are a very serious crime against women. Though Indian laws are not at par with the international standard, there exist many provisions aimed at preventing such gender-based cyber crimes. However, the country is still in the phase of recognizing online behaviour targeted towards a particular gender as a crime, efficiently. Therefore, what we need are separate laws for these kinds of crimes and once that happens then the online world will be a far better and safer place for women.

References

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

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

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

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

A glance through cyber law vs cybercrime in the US

By

Oishika Banerji

-

October 15, 2021

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

Table of Contents

Introduction

Every scenario has two sides, it is only judicious to look at both and decide if you want to see yourself as a victim or a learner. Borrowing this analogy, COVID has been a disastrous event that will forever be a blotch in our history. However, it has pointed out various vulnerabilities and the need for development in our daily life ranging as far and wide as medical care to government responsibilities and others that need immediate attention to prevent future hazards.

One such sector would be cyberspace. We may have been physically restricted to step outside, but the doors of cyberspace were kept wide open. The global cyber community witnessed a sporadic expansion with much traditional physical work moving online, something that was previously unimaginable. As it is, our reliance on the internet is more than what it has ever been before. A little under two decades ago, having access to the internet was similar to owning a piece of fancy furniture, which you may or may not have the most use for. Yet today basic internet services are critical to earning your bread and butter for a large portion of the population. With the addition of corporations, schools, recreational institutions making a paradigm shift to the online sphere, we are swimming much deeper than ever before and from where it stands the Internet is the first and last resort for most of us. It is therefore extremely important to take a good look at the cyber laws protecting the people today from various cyber-crimes.

Developments in the cybersphere

It would be naive to not acknowledge the impossible possibilities that the internet has actually materialized in this period that has helped propel humankind’s competence to uncharted levels. Nevertheless, it would be equally naive to not talk about the lurking danger in the vast and mostly unexplored meadows of cyberspace. Continuing with the same analogy of COVID, the determined reproductive rate of the virus is anywhere between two to three times without the practice of social distancing. Thus factoring in a rough population estimate of a state like New York which has approximately eight million people, the infection would double every three days before lockdown. On the contrary, the reproductive rate of cyber-attacks is twenty seven times or more once a machine is infected. A devastating computer worm from 2003 known as the Sapphire worm doubled in size in around 8.5 seconds thereby affecting a population of 10 million in or about twenty four hours. In 2018, cases of online identity theft were to the tune of 16,128 and non-delivery fraud of objects sold or bought through e-commerce were about 65,116. Considering how most of us were addicted to social media especially during this period of never-ending boredom and feeling of doom, it is quite natural that a large population tends to seek escape and solace in searching for romantic relationships online. The reported losses of victims of romance scams and confidence fraud sit at 92.5 million USD during the peak COVID period in the US. Irrespective of whether you are an individual or a Fortune 500 corporation, cyber victimization does not discriminate. Although the United States of America has some of the most established and robust laws and security frameworks for cyberspace, every day it faces thousands of crimes committed through the means of computers and its related networks. Through this article we take the opportunity to glance at USA’s laws for crimes related to cyberspace.

What constitutes cyber crime?

The term cybercrime is used as a genus under which, there thrive various species of illegal activities. The end means of which are achieved via unauthorized access and use of computers and computer networks.

For instance, with the advent of social media, a common incident is people commenting with rude or unsavoury words toward public figures or normal individuals for a variety of reasons. Such action over cyberspace can be termed harassment and is classified as a cybercrime. It entails various patterns of online behaviour which are deliberately done to inflict considerable emotional distress to any person who might talk about an unpopular opinion or against the self-determined rights and beliefs of the harasser. Cyber harassment can have an acute impact on a victim’s life too. It leads to psychological and emotional harm, disrupts the victim’s career and reputation along with causing defamation and consequential anxiety. If the victim is a student, it can interfere with their education to a great extent as well. In addition to psychological and social damage, cyber harassment has been found to have led to sexual assaults as well and driven up the suicide rates.

The 1980’s brought with it the dawn of criminal activities that were assisted by computers. The law enforcement agencies quickly felt the heat and found an empty arsenal to fight such crimes.

The wire and mail fraud provisions of the Federal Criminal Code had limited operability and did not provide the full range of tools needed. Congress quickly stepped in and started off by making it a felony to access classified information and financial or credit histories on computers either belonging to governments or institutions without proper authorization.

However, with the passage of time and more sophistication in methods of attack by cybercriminals, Congress made further clarifications and additions to the provisions of laws. It laid down the same in a cumulative form and named it as Computer Fraud and Abuse Act (CFAA) which helped deal with both criminal and civil penalties to perpetrators.

New additions included:-

Penalty for theft of property via computer as a method of defrauding.
Penalty for intentionally destroying data belonging to others.
Expanded the provisions to penalize publicly disclosing stolen information.
Recognizing the act of conspiring to commit computer hacking as illegal.
Broadening the definition of protected computers.

The most recent update to the CFAA includes further seven types of criminal activity.

Sr no.	Offences.
	Obtaining National Security Information
	Accessing a Computer and Obtaining Information
	Trespassing in a Government Computer
	Accessing a Computer to Defraud & Obtain Value
	Intentionally Damaging by Knowing Transmission
	Recklessly Damaging by Intentional Access
	Negligently Causing Damage & Loss by Intentional Access
	Trafficking in Passwords
	Extortion Involving Computers

Further, the much more regular variety of cybercrimes include hacking, DDOS attack, phishing, distribution of malware, electronic theft etc.

Therefore, reiterating what we previously stated, encompassing cybercrime within a handful of possible variations is infeasible. Any criminal activities committed with aid of computer or computer networks qualify as cybercrimes.

Is cyber terrorism an identical twin or a distant cousin of cyber crime?

Considering how we have till now hammered at the idea that any criminal activity conducted via the means of the cyber domain can be loosely categorized as a species of cybercrime, it is pertinent to mention to the reader that the road does bifurcate into two at a certain juncture.

Cyber terrorism is a different breed altogether. Yes, it is once again achieved via the aid of the cyber domain, however, the mens rea active in this scenario vastly differs from the one present in cybercrime and quite naturally so are some of the tools provided by law to tackle it.

To elucidate the difference further, we shall try to determine the basic accepted idea behind the two terms, i.e. crime and terrorism. In my opinion, “crime” is a more personal complication whereas “terrorism” is a political complication. Terrorism often ends with inflicting widespread damage. The United State statutes define terrorism as “an act to coerce a civilian population, to influence government policy by intimidation or coercion or to affect the conduct of a government by mass destruction, assassination or kidnapping”. Therefore for an act to qualify as cyber terrorism the mens rea behind it has to be represented by that of a specific group’s political, religious or ideological interests. For instance, in 1998, a Srilankan guerrilla faction sent about 800 emails a day to one of its government organs for a straight period of two weeks. The contents of the email read “We are the Internet Black Tigers and we’re doing this to interrupt your communications”. Cyber security experts recall this as the first known case of a terrorist organization utilizing cyberspace to disrupt governmental activities for self-gain.

Development of the law

Unlike the law enforcement agencies from and before the early 1980’s, the development of laws to curtail criminal activities in cyberspace has developed manifold, all the more considering how cyberspace is a fundamental aspect of America, entwining both its economy and defence. In the aftermath of the Cold War, analysts from the various security agencies of the US started to research and propose the next possible attack on the US and draw attention to various exposures in the defense of its homeland. Hence, as a result of years of investment and meticulous planning, the rules and regulations in effect today are some of the most robust in the world.

The US being a federal structure of governance, chose to tackle these concerns of cyber security and laws at the federal level and through sector-specific rules and regulations.

For instance, crimes related to the healthcare sector are dealt with by the Health Insurance Portability and Accountability Act (HIPAA). The financial sectors are dealt with by the Gramm Leach Bliley Act (GLBA) and the Federal Information Security Act (FISMA).

However, as mentioned earlier the go-to statute for prosecuting cyber crimes remains to be CFAA and for very good reasons. It encompasses mostly all aspects of typical cybercrimes and provides both a civil and criminal remedy to the aggrieved. Another relevant law would be the Electronic Communications Act (ECPA) which protects communications in storage or while in transit e.g. email services. Again being a federal structure the advantage lies with the states to pass and enact laws that they think can be beneficial for the population of their state. E.g. New York prohibits the use of computers with the specific intention to gain access to its materials and deals out severe penalties such as prison time varying from 4-15 years depending on the severity of the crime.

Overreaching effects of the law

As much as it is there to protect and serve the innocent, sometimes a loose framing, ill-defined or expansively wide interpretation can have a boomerang effect. Having state backed law enforcement agencies throwing your liberty and freedom out of the window based on their own set of paranoid allegations is just as bad as being a victim of a crime. The following are an example of the same.

Van Burne vs United States

Former Georgia police sergeant Nathnan Van Burne was convicted under the CFAA for accessing the law enforcement database to search for information regarding a license plate in exchange for money. Unknown to Mr Van Burne he was in the crosshairs of an FBI sting operation. The charges brought against him were for “intentionally accessing a computer without authorization or exceeding authorized access”. Mr Van Buren was found guilty by the jury and was sentenced to 18 months in prison. Fortunately, the decision was reviewed and overturned by a 5 judge bench that believed the interpretation used was draconian, and stated that if violating terms of service is labelled as a crime without investigating the situation through and through, private companies would put half the nation behind bars by now.

Aaron Swartz

Aaron Swartz was an Internet activist who was indicted in 2011 for allegedly connecting to a network and downloading 2.7M academic copies that were anyway freely available to be downloaded from JSTOR. Although JSTOR did not press any charges for the same, the Justice Department took it upon themselves and charged Swartz with 13 counts of felonies as he faced 50 years in prison and a potential fine of 50M USD.

This indictment could be validated because of the loose framing of the CFAA for a crime that should have at the most attracted a decision of misdemeanour.

Lori Drew

Lori Drew was a middle-aged mother charged with hacking in 2008 for violating the terms of MySpace after she conspired with three other people to open a fake account and bully a girl who had a fallout with Drew’s daughter. The girl subjected to the bullying later went on to commit suicide. Under public pressure, the statutes of CFAA were again interpreted at will, and Lori Drew in absence of any law against cyberbullying was charged with unauthorized access to MySpace’s computers. Although the jury found her guilty, the judge refused the conviction and stated the CFAA was constitutionally vague and would open multiple innocent internet users into criminal charges if this was allowed.

Conclusion

The above article was a brief attempt to differentiate and understand the state of Cybercrime and Cyber laws in the US. Along With an increase in the usage and power of cyberspace, there needs to be commensurate protection via laws against all forms of cyber-crime. Hopefully, through this article, the reader will have an opportunity to grasp some material information regarding the laws in the USA protecting people from cybercrimes and leave with a better picture of the current state of affairs in the matter.

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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Time taken to grant a patent in different countries : a comparative analysis

By

Diganth Raj Sehgal

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October 15, 2021

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This article is written by Vivek Maurya from ICFAI Law University, Dehradun. This article describes the stages of time taken by different countries to grant a patent license.

Table of Contents

Introduction

The time taken by the patent offices to grant a patent is generally the time for the inspection, modification, and for any objections to determine that the patent is new and first. In most countries, the patent procedure starts with filling an application for the invention with the prescribed fees and ends with granting patent rights, which exclude others from making or selling that invention for a limited time.

Background

The Patents Act 1970, along with the Patents Rules 1972, came into force on 20 April 1972, replacing the Indian Patents and Designs Act, 1911. The Patent Act was largely based on the recommendations of the Iyengar Committee Report headed by Justice N Rajagopal Iyengar. One of the recommendations was to allow the processing of patents only in respect of inventions relating to drugs, food, and chemicals.

Later, India became a signatory to several international arrangements aimed at strengthening its patent law and coming into the league with the modern world. An important step towards achieving this objective was to become a member of the Trade-Related Intellectual Property Rights (TRIPS). Significantly, India also became a signatory to the Paris Convention and the Patent Cooperation Treaty on 7 December 1998, and then on 17 December 2001 the Budapest Treaty.

Meaning of a patent

A patent is an exclusive right to a product or process that typically provides a new way of doing something or a new technical solution to a problem. To obtain a patent, technical information about the invention must be disclosed to the public in the patent application.

The patent owner may permit or license other parties to use the invention on mutually agreed terms. The owner can also sell the rights to the invention to someone else, who will then become the new owner of the patent. Once a patent expires, the protection expires, and an invention enters the public domain, that is anyone can commercially use the invention without infringing the patent.

What inventions are patentable

To determine whether the invention relates to something that can be patented, it should not fall within the ambit of Section 3 and Section 4 of the Patent Act. Section 3 and 4 of the Patent Act lists non-patentable materials. If the invention does not fall within the scope of any of the provisions of Section 3 or 4, it means that it is subject to patentability. Legal criteria for the patent of an invention:

Novelty

Innovation is an important criterion in determining the patent potential of an invention. Section 2(1)(l) of the Patent Act defines innovation or innovation as “any invention or technology that is not intended to be published in any document or publication in the country or elsewhere in the world before the filing of the patent application with full specification, that is the subject matter has not fallen into the public domain or is not a part of state of art”.

Simply putting the need for innovation is fundamental for patents and it should never be published in any public domain.

Inventive step or non-obviousness

According to Section 2(1)(j) of the Patents Act, the innovation phase is defined as “a feature of an invention that is technologically advanced compared to current knowledge or financial significance or both and makes the invention clear to the skilled person”. This means that innovation should not be obvious to a person who specializes in the same field of innovation. It should be invented and not obvious to a person who specializes in the same field.

Capable of industrial application

An industrial application is defined under Section 2(1)(ac) of the Patents Act as an “invention capable of being manufactured or used in any industry”. This means that the invention will not be abstract. It must be applied in any industry, i.e. there must be a practical purpose to the invention to obtain a patent.

What inventions are non-patentable

Despite the satisfaction of testing for any innovation, novelty, use, and lack of clarity, it cannot be patented if it falls within any of the criteria under Sections 3 and 4. Section 3 of the Indian Patent Act specifically mentions sixteen exemptions from which a patent cannot be obtained in India.

A patent must not be a petty invention or contrary to established natural laws.
The invention of the scientific principle or the formulation of the abstract principle or the invention of any living thing or creature that occurs in nature is not patented.
Discovering a new form of a known substance that increases the efficiency of that substance or the discovery of a new property or a new use or known process for a known substance, machine, or equipment will not be patented if such a process leads to new production or at least hires a new reactant.
The alignment or reorganization or duplication of known devices, each operating independently of the other in a known way is excluded from the patent.
The farming or horticultural method, for example, the actual process of cultivating a new type of soil or wheat cannot be patented.
Medicine, surgery, immunotherapy, human therapy, or other treatment or any procedure to rid animals of disease or increase their economic value or their products. E.g. Surgery or blood transfusion cannot be patented.
Non-biological processes other than microorganisms in the form of plants and animals, including seeds, varieties, and species, and especially plants and animals are excluded from patenting for production or promotion.
Mathematical methods or business methods or algorithms or computer programs cannot be patented.
Any other aesthetic work, including literary, dramatic, musical, or artistic writing or cinematographic works and television productions is subject to the protection of copyright law and is therefore excluded from the scope of patent law.
In the opinion of the Central Government, inventions that are useful or related to the production, control, use or disposal, or promotion of mining, extraction, manufacturing, physical and chemical treatment, manufacturing, or nuclear energy are not patented.

Benefits of getting a patent

Patent law makes the inventor the sole owner of their invention and increases their confidence to create more ideas. The owner can get many benefits after getting the patent, some of which are as follows:

Unique access to each claim from the time of initial filing

Patent registration begins to provide benefits to inventors from the first stage, i.e. the time it takes to file for a patent. As soon as the provisional patent application is filed, the applicant is assured of security and assurance that no other person or organization can get ideas similar to his invention. If another person applies for the same patent, their request will be denied at the time of filing, which is 12 months in India.

Freedom to change

Patent law gives the owner the right to use his ideas in any way for as long as allowed. This means that the owner has complete freedom to use, sell or modify the original invention and to prevent others from profiting from the same idea without his permission. Once a patent is granted, the inventor can sue the consumer who is found to have infringed his or her patent rights. Note that patent infringement is a criminal offense.

ROI (Return on Investment)

Sometimes, the owner realizes that his invention is not giving him good results and therefore, he wants to hand it over to a qualified or successful person. Once acquired, the patent right allows him to earn a good amount of ROI, i.e., return on his investment by commercializing the invention.

Chances of getting a good name in the market

Patent rights allow the inventor to gain a recognizable market position and improve his portfolio by publicly disclosing the invention. This will help him to develop better relationships with customers and competitors, which will ultimately contribute to his income.

Public exposure

Patent rights allow for public disclosure, which helps the inventor build his portfolio, while at the same time increasing funding, market value, and business partners. Publicly sharing information related to innovation demonstrates a good grasp of the skill and technicality of the inventors. All of these facts benefit the employer by attracting major and top-level investors, shareholders, business partners, and customers.

How much time does it take to get patent rights

India

Patents in India are valid for 20 years from the date of filing. No official grant fee is indicated. The annual maintenance of an Indian patent valid for the first 3 years must be paid before the expiration of the second year from the date of filing or priority after the completion of the patent registration process. If the patent is granted two years after the date of filing, it is possible to pay the annuity in an accrued manner within three months of being granted. It is also mandatory to file a work declaration with the Indian Patent Office for all patents granted by March 31 of each year, providing information on the commercial performance of the patent during the previous calendar year. Granting a patent can take more than 2 or 3 years by the normal way and less than 1 or 1.5 years by the fast way.

The period for filing a patent application stating the traditional priority in India is 12 months from the date of priority. This period cannot be restored.
The official language of patent registration in India is English or Hindi. It is possible to submit the application in a foreign language and submit the translation within three months as invited by the Indian Intellectual Property Office. However, it is highly recommended that the translation be submitted at the time of filing.
If the priority document is not in English, the last date to submit an English translation of the priority document is 12 months from the date of initial priority claimed. If the Priority Document (and its English translation, if applicable) is not submitted within 12 months, it will be submitted within three months from the date of the invitation from the Indian Patent Office.
A scanned copy of the Power of Attorney may be submitted within 3 months from the date of filing, however, if requested, must be submitted within 15 days from the date of receipt of the notification from the original office. No certification or notarization of power of attorney is required.
Patent applications in India are subject to formal and preliminary examinations. The request for the original examination of the patent application in India must be made within 48 months from the date of priority. It is possible to request a speedy investigation under the Patent Prosecution Highway (PPH).

United Kingdom

The term of the European patent is 20 years from the filing date. The official grant fee must be paid within four months of the European Patent Office (EPO) communication. Annuities apply to pending applications and are paid from the third year of filing. The annual fee must be paid on the last day of the month following the anniversary of the date the European patent application was filed and will not be paid until three months before it is due. Late payment is possible within six months after the due date subject to payment of a surcharge. It takes an average of 3 to 5 years to obtain a European patent certificate.

The deadline for filing a patent application prior to the previous application with the EPO is 12 months from the date of priority. Priority renewal is possible within two months from the missed deadline.
The official languages of the European Patent Office are English, French, and German. An application for a European patent may be filed in any language, but a translation into one of the official languages of the application must be submitted within two months from the date of filing. Following the issuance of a patent decision, patent claims must be translated into two other official languages.
A certified copy of the priority document must be submitted within 16 months from the date of priority.
The EPO will review applications under official requirements after the application filing date. A patent search is a mandatory step in the European patent granting process. This must be requested at the time of filing.
A request to conduct an actual investigation of a European patent application must be filed within six months of the publication of the Discovery Report. In some cases, it may be possible to request a rapid test via the PPH route.

United States of America

The official issue fee for a patent in the United States must be paid within three months of the mail of the allowance notice. The annual fee is payable within 3.5, 7.5, and 11.5 years from the date the patent is issued and can be paid within 5 months from the due date without any surcharge. Late payment with surcharge is possible within 6 months from the expiry of the above period. Advance payment is not available. Valid for twenty years from the date the patent was filed in the United States. In the United States, it takes an average of 32 months to file a patent.

The official language of U.S. patent applications is English. When filing a non-provisional patent application, it must be submitted in English or, in addition to the English translation, a statement stating that the translation is accurate and a related fee must be paid. If translation, explanation, and fee are not submitted at the time of filing, notice and time limit will be given for submission of missing items.
A certified copy of the priority document must be filed within four months from the date of applying or within sixteen months from the date of filing the preliminary foreign application. If not in English, translation may be required to establish the right of preference.
The applicant is responsible for disclosing through the Information Disclosure Statement (IDS) any information deemed important to determine the patent potential of the claimed invention. This duty applies to the legal representative of the applicant and any person involved in the registration of the application. Information can be of any kind and is not limited to advanced art.
The duty continues until the patent is issued or the application is abandoned. Deliberate failure to submit the IDS may result in the patent being declared invalid. If the IDS is filed within three months from the date of applying or before the first office action, there is no need to pay the government fee for filing the IDS. Any information contained in the IDS is already known from the Foreign Patent Office prior to the filing of 3 IDs in the equivalent foreign application, or if it is more than 3 months before the applicant or the applicant’s representative. For IDS filing, an additional official fee must be paid.

China

Patents in China are in force for twenty years from the filing date. The first annual fee must be paid at the time of registration. All subsequent annual fees must be paid in advance before the anniversary of the date of filing. Late payment within a grace period of six months is possible by paying the relevant surcharge. The average processing time for a patent registration process in China is 3 years.

The period for filing patent applications with the National Intellectual Property Administration of China is 12 months from the date of priority. This term cannot be extended.
The official language is Chinese. The Chinese translation of the application must be submitted at the time of filing; Late filing does not apply. To obtain a filing date, the applicant and inventor are required to provide China’s National Intellectual Property Administration with details and application materials.
A generally signed copy of the Power of Attorney must be provided within three months from the date of filing.
A certified copy of the priority document must be provided within sixteen months from the date of priority. The title of the priority document should be translated into Chinese.
Patent applications in China go through formal and factual examinations. The request to conduct the actual examination must be made within three years from the date of filing or, if priority is claimed, from the date of priority.
Disclosure of information about an invention within six months of entering China does not preclude its innovation if it is exhibited for the first time at an international exhibition sponsored or recognized by the Government of China;

Japan

Patents in Japan are in force for twenty years from the date of filling. The official grant fee for a patent in Japan must be paid within 30 days from the date of receipt of the allowance notice. The first three years of the annuity must be paid together with the grant fee. The management fee for the fourth and subsequent years must be paid annually before the actual grant date anniversary. Late payment within 6 months is possible with a 100% surcharge. The annual maintenance fee depends on the number of claims. It is possible to pay the annuity on an accrual basis. The estimated time from filing a request to grant a patent application is nearly about 22 months.

The period for filing a traditional patent application in Japan is 12 months from the date of priority. This period cannot be restored.
A Japanese patent application under the Paris Convention can be filed in any foreign language. Its Japanese translation must be submitted within 16 months from the date of filing or the initial priority date. However, if the patent application is based on a divisional, modified, or utility model application, the applicant must submit a translation within two months from the date of filing such application. If the translation is not submitted within the above period, a notice of failure to file the translation will be issued by the Japanese Patent Office. The applicant must provide the translation within two months from the date of giving the notice.
To confirm the right of priority, an applicant must submit a certified copy of the priority document within 16 months from the date of priority. The first page needs to be translated into Japanese. The preference of some countries is accepted without a certified copy of the Digital Access Service (DAS) code provided or by mutual agreement.
In Japan, patent applications are considered according to official and actual requirements. The request for an original investigation must be filed within three years from the date the patent application was filed in Japan. It is possible to request a speedy investigation under the PPH.
A protest against patent registration in Japan may be filed by an interested party subject to payment of the relevant fee within 6 months from the date of publication.
Any disclosure of the inventor (including the sale) within twelve months from the date of filing the patent application in Japan denies the novelty of the invention.

Conclusion

The wise use of patent information, which is a unique source of technical, business, and legal information, contributes to the success of any organization, large or small. Today’s rapid development has opened up new avenues for smart businesses to use patented information to improve their business strategies in the domestic and export markets. The low cost of accessing patent information makes it a particularly attractive option for small and medium-sized companies.

References

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Data protection as a fundamental right under European Union’s Charter of Fundamental Rights

By

Abanti Bose

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October 15, 2021

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This article is written by Gannat Juneja, pursuing Diploma in International Data Protection and Privacy Laws from Lawsikho. The article has been edited by Zigishu Singh (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Table of Contents

Introduction

Nowadays issues related to the protection of personal data are popping up daily and feature a strikingly contradictory approach. Data collected for a given purpose is made available for different purposes justifying them as equally important. Data processed by a given agency is made available to different agencies. Thus, it exposes an individual’s information to the maximum extent leaving no room for privacy. It implies a new distribution of political and social powers.

Integration of the knowledge with the awareness of rights and the huge amount of information available on the internet has increased awareness for data protection. The importance of Data protection is necessary for upholding the privacy of and most importantly, the freedom of individuals. Data protection is recognized as a fundamental and autonomous right under the Charter of Fundamental Rights of the European Union.

Difference between various types of rights

But at first, we need to understand human rights vis-à-vis fundamental rights and constitutional rights?

To understand the difference between rights, constitutional rights and human rights, we need to understand what is a right. Rights are those which are morally correct, just, or honourable like legal claims people have against others granted by the law or evolve out of relationships or status or designation.

Constitutional rights regulate the relationship between citizen and state and provide citizens with freedom from governmental interference. Human rights are independent of nationality or citizenship as compared to constitutional rights that are granted to the citizens of a state. Human rights are granted to all human beings establishing the essential values to make their life worth living. European data protection law has its deep roots in a state-level law rather than from national law or from any directive, when the world’s first comprehensive information privacy statute was enacted by the Hessian Parliament in Wiesbaden, Germany, on September 30, 1970.

History of data protection laws in Europe

Other European Union (EU) states like Sweden, Austria, Denmark, France, and Norway followed the footprints of Germany. From 1973 to 1978, these states also enacted data protection statutes as well as with a unanimous resolution to enact Fair Information Practices (FIPs) and simultaneously EU Data Protection Directive of 1995 followed by the privacy agreements.

The EU established FRA (European Union Agency for Fundamental Rights) as an independent body in 2007 based in Vienna to help safeguard the rights, values and freedoms as mentioned in the European Union’s Charter of Fundamental Rights.

The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 1981 by the Council of Europe laid down the object and purpose of the instrument under Article 1. The convention specifically referred to the right to privacy establishing the objective to secure the privacy rights of every individual along with other rights (be it fundamental rights/constitutional rights or human rights) as well as freedom in the European Union irrespective of citizenship, nationality, residential status or place of birth. The right to privacy along with data protection is most importantly recognized and granted by the convention along with other freedoms to enjoy a peaceful life.

The Schrems decisions

The cherry on the cake was placed when the European Court of Justice came out with the landmark decisions on SCHREMS-I and SCHREMS-II.

In the case of Schrems I, the Court held that ‘Article 25(6) of Directive 95/46 (Data Protection Directive of EU, enacted in October 1995) implements the express obligation laid down in Article 8(1) of the Charter to protect personal data and is intended to ensure that the high level of that protection continues where personal data is transferred to a third country.

When the European Court of Human Rights confirmed that data protection is partly covered under Article 8 of the European Convention of Human rights, data protection came under the umbrella of fundamental rights as per the Charter of Fundamental Rights of the European Union. Right to data protection is one of the sensational issues for legal as well as political dialogue and shall remain for the next decade across the globe.

Article 7 of the Charter of Fundamental Rights of the European Union : Respect for private and family life

Everyone has the right to have his or her private and family life, home and communications respected.

Article 8 of the Charter of Fundamental Rights of the European Union : Protection of personal data

1. Everyone has the right to the protection of personal data concerning him or her.

2. Such data must be processed fairly for specified purposes and based on the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right to access data that has been collected concerning him or her, and the right to have it rectified.

3. Compliance with these rules shall be subject to control by an independent authority.

Article 7 guarantees the right to privacy and most importantly Article 8 emphasizes the right to the protection of personal data. Further Article 8 segregates the right to privacy and provides the protection of personal data the status of fundamental rights separately.

It is interesting to note that the European Union has directly used the concept of fundamental rights in its texts and communications instead of incorporating natural rights and human rights. Thus by incorporating the fundamental rights in its documents, the EU has raised the standards of data protection and privacy framework and has brought them at par with the other ‘fundamental rights’ laid down. Moreover, the data protection concepts have been substantially expanded over time exponentially.

The situation after the adoption of GDPR

Thus, the EU Charter of Fundamental Rights has granted the basic fundamental rights along with the data protection and freedoms granted to everyone in the European Union irrespective of nationality, domicile, religion, caste or any other ground. It is worth mentioning here that the right to data protection is in the limelight due to the applicability of the General Data Protection Regulation (GDPR) since 2018 with heavy fines and penalties for violations.

The paramount aspect is that GDPR has cross-border implications and framing down the concepts of data processing, ironing out the creases at the national level of data protection within different countries of the EU. The Regulation has granted the authorities with sharp teeth and wider powers with a leading supervisory authority investigating EU-wide data protection and processing activities related to personal and sensitive data.

Further, The Working Party has been replaced by a European Data Protection Board, which has been bestowed with wider powers. Certain articles/ directives and texts have been included amongst the General Data Protection Regulations to clarify in detail and plugging the ambiguities on the way of interpretation of the fundamental rights. Further, this aspect has led to increased harmonization and a better data protection framework under the purview of fundamental rights.

The right to data protection has been further granted the status of a fundamental right is further enshrined in Article 16 of the Treaty on the Functioning of the European Union.

It lays down that:

1. Everyone has the right to the protection of personal data concerning them.

2. The European Parliament and the Council, acting per the ordinary legislative procedure, shall lay down the rules related to the protection of individuals concerning the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.

The rules adopted based on this Article shall be without prejudice to the specific rules laid down in Article 39 of the Treaty on European Union.’

The Charter and the Treaty alongside the latest GDPR regime grants the protection to the right of data protection. It ensures that GDPR must be read and interpreted under the light of the Charter and the Treaty. Directive 95/46 in consonance with the Charter provides a high level of protection but that could easily be deceived by transferring personal data for processing to third countries from the European Union.

Thus data protection is now protected on the highest level in the EU and is rightly established as a fundamental right. Further, the EU has an explicit mandate in terms of GDPR to regulate the field of data protection, which is unique compared to other fundamental rights as well as in terms of the treaty.

The General Data Protection Regulation has further substantiated the right to data protection in detail on the highest level possible of the fundamental rights in the EU. But there are certain aspects that make it impossible to digest that data protection is fully a fundamental right. This is because internal and international security requirements require the sharing of data making it vulnerable and piercing the protection granted under fundamental rights. Furthermore, government organizations, public agencies, competition amongst the rivals, race to control the market share and social websites are leading to penetration of implemented safeguards and making data more vulnerable to hack and making the mockery of fundamental right status granted to the data protection.

Key takeaways

There are certain deviations that are highlighted as the processing of certain sensitive personal data which fall under Article 9 of GDPR such as political orientation, medical conditions or race, which might be essential to establish law and order in a democratic society. Similarly, in certain matters like in the case of Digital Rights Ireland, the Court regarded the legality of the Data Retention Directive as protection to fundamental (human) rights.

But as in the case of data protection rules which already seems to be a dilemma between the fundamental right of the protection of personal data as compared to the free flow of information creating the biggest hindrance in the very fundamental right itself.

The new GDPR regime establishes the transparent processes of data protection by introducing the concepts of adjudicating authority, data controllers, data processors, rules regarding the transfer of personal and sensitive data, keeping data up-to-date as well as return or delete of data securely and confidently, so that the privacy is maintained and data is protected on a priority basis. But the protection of data protection as a fundamental right is in jeopardy as the meaning and precinct of ‘personal data’ is expanding daily leading to every type of data being termed as personal data.

The concept of data protection as EU-wide harmonization of data protection rules through GDPR is more akin to market regulation instruments than to human rights documents. Further, the fines to the tune of 20 million Euros of 4% of total global turnover make it more of a market regulation instrument rather than qualifying data protection as fundamental protection laws.

Some provisions of data protection satisfy the idea of fundamental human rights, whereas the majority of the data protection qualifies as a market regulator.

Further to qualify the data protection as the fundamental right, the law scholars have defined certain approaches to compare the same with traditional features of the fundamental right.

First is the classical approach of fundamental (human) rights which is not qualified by the Right to data protection in the literal sense. However, modern interpretation with widened scope must be accepted to digest the data protection as a fundamental right granted to an individual.

Secondly, multi-faceted aspects of data protection can be categorized under the fundamental right, market regulations and as the protection of consumer rights.

Data protection framework has been enacted to undergo data processing activities fairly and transparently that can be carried out in compliance with the law of the land without attracting any penalties prescribed thereunder GDPR or any other relevant regulations in contrast to violation of human rights of data protection and privacy and to live with dignity.

Conclusion

Finally, we can conclude that rules and regulations regarding data privacy and protection are more of regulating personal data in the market scenario rather than to protect human rights or acquiring the status of fundamental rights or more precisely to treat data protection laws as an ordinary consumer (data subject) protection rights. Thus, it seems that the term for data protection rights must be coined as a data protection consumer right, rather than a purely fundamental right.

References

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