Why are billionaires investing in cryptocurrency

By

-

October 7, 2021

bitcoin — Image Source: https://rb.gy/gzty2p

This article is written by Bodhidipta Mandal, pursuing Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. The article has been edited by Dhruv Shah (Associate, LawSikho) and Dipshi Swara (Senior Associate, LawSikho).

Table of Contents

Introduction

Throughout human civilization, humans have faced one particular problem at all times i.e. what can be a perfect value transfer item?? For example, in ancient times buffalos were used in barter systems to exchange goods. Then we started using salt, followed by crop and then gold. And now it is money, not only do we consider someone who has more money rich but also which money/currency is more valuable we consider that country to be more wealthy and more powerful.

But think about this, you have “X” amount of money in your locker. And suddenly your government declares that they will introduce newly printed money and the previous currency will no longer be considered as legal currency. From having “X” amount of money you are down to 0. The bottom line is that until your state validates the printed papers in your pocket, it will hold no value.

In view of all this, consider a scenario where we have a global currency and that requires the global audience validation to be considered valuable???..No state interference, no Govt. regulations, globally accepted and most importantly secure. This is the thought behind the world’s first cryptocurrency, Bitcoin. This article will talk in detail about cryptocurrencies, their legal validity in India, things to consider before buying cryptocurrency and how they are emerging in today’s modern world. But, before we jump directly into cryptocurrencies, first let us understand the technology behind cryptocurrency.

Everything you need to know about blockchain

As the name suggests, Blockchain is simply a chain of blocks. Each of these blocks contains data that is secured by a specific hash key and the previous blocks hash key.

What is known as Hash Function?

In layman’s terms, a hash function is simply an identification number. Kind of like your Fingerprint. But, if any single digit, letter or even spacing changes in that data the hash number will change. If you think Hash Number is a security lock of your data stored in blockchain then it must have some key! Yes, a hash function has 2 keys, A private key (Which the owner only has access to) and one public key (if the owner wants to share that data with anyone, then he can give him this key). Now that we are clear with the hash function let us jump into the technical details of Blockchain.

As previously discussed, each block consists of three things:

Data,
Hash,
Hash of the previous block.

Now the data in each case can be different and mostly depends on the purpose. In the case of Blockchain it is:

To: (Sender)

From: (Receiver)

Amount: (BTC)

Each data derives a specific Hash number and the last thing the block needs is the previous block’s hash number. By confirming with the previous Blocks Hash number each block forms a chain. (Only exception is the first block as it does not have the hash number of the previous block, it is popularly known as the genesis block.)

Here is a table presentation to understand this easily

BLOCK 1	BLOCK 2	BLOCK 3
Hash: QGHK	Hash: 1KXS	Hash: 06YP
Previous Hash:0000	Previous Hash: QGHK	Previous Hash: 1KXS

If you want to alter any hash value you have to alter all the later hash values as without that the system will not accept it. But is it not possible to do that quickly in future? With the help of better technology can we not change all the hash values in seconds?

The simple solution the engineers came up with was to slow the time. So, if one block has been created it will not accept another block for the next 10 minutes. Now here you can do a simple exercise: keep this scenario in mind, go to the e-wallet you use and calculate the amount of time it will take if you have to update each of those transaction numbers and you can only update the next number after 10 mins once you finish the first one.

Everything you need to know about cryptocurrencies?

From here we will focus less on technical definitions and focus more on real-life examples which will be a lot easier to relate. So, the main attraction of cryptocurrency is its decentralization. No central authority or government owns this, it is controlled by the people only and it is as useful as money, it holds its own value and you can use it to buy any good you desire.

Just take a small pause here. I want you to understand how having control over your money by any public or private authority can affect your life.

If I know you purchased a car yesterday, I’ll start recommending some car insurance.

If I have your Fixed deposit information, it will be easier for me to recommend some lucrative returns on mutual fund plans. Now in this scenario, your life will be a little bit easier as you get suggestions before you ask but the amount of profit I can generate will blow your mind.

To save you from this control is the original idea behind the origin of cryptocurrency. As we have discussed the security part earlier, I would like to take you to its other usefulness. There is a certain limit up to how many units it can exist (without mining). In the case of Bitcoin, it is 21million. The little to no transfer costs and no limits on purchases and withdrawals. And even quick international transactions.

It was originated to change the world’s payment system but with time cryptocurrency has also gained the status of an asset. As people understood the technology behind cryptos they started believing that crypto is the future of money. With that belief and with all the additional benefits people start buying cryptocurrencies. And the cryptocurrencies in its true sense didn’t keep their investors empty-handed for a long time. Even in a period of a few months some cryptos gave more than 250-900% returns to its investors. As the popularity of cryptocurrency develops, governments start questioning its legality and framework. In some cases, few states banned cryptocurrency for a short span of time, some started to focus on building their own state digital currency (China’s e-RMB) and on the other side some countries gave bitcoin the status of their national currency (El Salvador).

Legal validity of cryptocurrency in India

The popularity of cryptocurrency also raised a few questions around the globe. As no government authority has the power or ability to track the money, people start questioning if the money is being used for illegal purposes! Like funding the terrorist organisation. And very soon these imaginary situations became reality. All of us may probably remember when all the influential people’s Twitter accounts were hacked on the same day, and the hackers claimed money in Bitcoin. In a very recent case Dominos India’s customer data was hacked and hackers auctioned the whole data on the dark web for 2 to 10 Bitcoin (BTC).

Without a doubt, raising scenarios like these developed tensions and as an initial reaction, few countries banned cryptocurrency. For example, in India RBI (Reserve Bank of India) issued a press release in 2013, cautioning the public against dealing in virtual currencies including Bitcoin. In November 2017 the Government of India constituted a high-level Inter-Ministerial Committee to report on various issues pertaining to the use of virtual currency and subsequently, in July 2019, this Committee submitted its report recommending a blanket ban on private cryptocurrencies in India.

In 2018 RBI issued a circular directing Banks and NBFCs to not only stop dealing in virtual currencies themselves but also directing them to stop providing services to all entities which deal with virtual currencies. Till this time India had more than four to five cryptocurrency exchanges which suffered huge losses as the customer needed money from the bank to buy their cryptocurrency and again to convert their cryptocurrencies to real money.

However, in 2020, the Apex court of India in the case of Internet and Mobile Association of India vs. RBI, in a well-conceived judgment passed a decision quashing the earlier ban imposed by the RBI. The Hon’ble Supreme Court of India predominantly examined the matter from the perspective of Article 19(1)(g) of the Indian Constitution, which specifies the freedom to practice any profession or to carry on any occupation, trade or business, and the doctrine of proportionality.

However, in the recent amendment of Schedule III of the Companies Act, 2013, The Government of India directed the companies to disclose their investments in cryptocurrency. This decision will benefit the companies in multiple ways. Firstly, the crypto investments of the companies will reflect in their balance sheet. The stock investors who invest in Indian listed companies always do a detailed analysis of the company balance sheet. Now the same investors will be introduced to the cryptocurrency scene which in the long term generates more and more crypto participants.

Is buying cryptocurrency investing or speculation?

There is a huge debate around this. And the debate is not limited to the average human being. Greatest Investors of all time, Hedge fund managers, Top CEOs of best of the best companies have now become a part of this debate. And naturally, there is no conclusion where we can rest the case. Later in this article, I will give a few insights about how the best of the best minds are dealing with cryptocurrency.

The important question here is that if you put money in cryptocurrency, will it be an investment? Let’s just say you have an opportunity to invest in a start-up that has been on the scene for five years. And if you decide to invest in that start-up will that be investment or speculation?

The answer is simple, nobody knows, it can be a multibillion-dollar company or its valuation can become Zero within a month. Investing in cryptocurrency is quite similar.

Cryptocurrency at its core concept does not generate any value. It is merely a transactional instrument. But the possibility that it can potentially change our entire monetary system is what gives it value. A common example used in the crypto world is like you had an opportunity to invest in the internet (concept) before its popularity. Crypto lovers see crypto as Internet 2.0. This simple example is behind all the hype. Now that I have mentioned the hype, how can we end this discussion without mentioning the originator behind this hype?

Elon Musk and 2020-21 Crypto Boom

Elon Musk actually built a digital payment company when all our transactions were taking place on cash or cheque. When he planned to reuse the rockets, people doubted him for every second. But proving himself right again and again earned him the status that he can actually see the future technology development.

So, in 2020-21 after a couple of tweets about GameStop, Elon Musk put the Bitcoin logo in his bio. Which surprisingly moved the Bitcoin price. Elon Musk expressed his love for Bitcoin and the idea behind Bitcoin. And the Bitcoin price started to make record highs with each of Musk’s tweets. But the actual show began when Musk started promoting a meme coin, namely dogecoin (which price was actually around 0.0082 dollars). By this time people had seen the Bitcoin rally and no one wanted to miss this opportunity. Without judging the actual fundamentals of Dogecoin people started to empty their pockets and buy as much Dogecoin they could. What happened to these investors? Well, in short someone became a millionaire within 69 days. But at the end its value dropped quite a bit. But still, Elon and few investors believe in Dogecoin and they see a good potential in it.

Why billionaire investors like Mark Cuban, Robert Kiyosaki are betting huge money on cryptocurrency?

We all probably know Mark Cuban, who is a judge of “Shark Tank” and made billions from his investments. Just before we take a deep dive, Mark Cuban recently invested in an India Crypto start-up- Matic. Cuban has been very open about his Crypto investments and he firmly believes the upside potential of Cryptocurrency is unlimited. For now, he sees Bitcoin as nothing but a store of value. Much like digital gold. He believes as people start understanding the power of Decentralized Finance (De-Fi) people will jump into Bitcoin which will automatically increase the demand. Having a very limited supply (21.9 million) Bitcoin will have no other option but to raise in price. Though Cuban is very bullish on Bitcoin, he believes Bitcoin needs to have a more customer-friendly interface and also Bitcoin and De-Fi need to evolve in order to become a Bank Account without a Bank.

Cuban sees problems like this solving with ETHEREUM(ETH). Ethereum is nothing but a 2nd generation cryptocurrency. Which is a lot more advanced and gives a platform to others to build their series services on top of it. Let me give you an example, you have booked a cab on Uber, some driver came to pick you up. No matter whether you are paying the fees to the driver directly or to Uber, Uber will always deduct its fees and give the rest of the money to the driver. Ethereum has a technology called smart contract which allows You and the driver to do their part of the contract and there is no need for any third party. Upon fulfilment of the duties, it will automatically deduct ETH from your account and give it to the driver. In a way you both don’t need to trust each other but the system. Now as an exercise, You can think of the same example with Upwork or Fiverr. Cuban believes with proper developments Ethereum will disrupt big software companies.

If you have any interest in personal finance and anyone asks you to recommend one personal finance book to him, you probably will recommend “Rich Dad Poor Dad”. You will be glad to know that the author of “Rich Dad Poor Dad”, that is, Robert Kiyosaki, loves Bitcoin the most. Well, he has a different set of reasons, and definitely, that will open up a few benefits other than the technical aspect for you. Before we begin the discussion let me ask you something;

There is a currency

Which has an unlimited supply cap, already $2.1 trillion in circulation

Top 1% owns 30% of its supply and;

35% of it was printed last year.

If you haven’t guessed it till now. It is the U.$ Dollar. It might have given you a shock and most of the investors are also dealing with the same shock. Many investors believe this Act of Federal Bank will be a cause of massive inflation. Robert in his many tweets discussed that his personal reason to invest in Bitcoin is it’s out of any authority’s hand. In one of his tweets, he said, “Remember the problem is not Elon Musk or bitcoin. The problems are the Fed, Treasury, and Biden. Gold, silver and bitcoin are the solutions.”. In every Bitcoin crash, Robert urged his followers to buy as much as they could because “It is at a discount”. The reason can be the brilliant technology behind Bitcoin or other Cryptocurrencies or its decentralization. The fact is that investors are not only talking about this openly but they are actually putting their money where their mouth is.

How can you conduct proper research on any cryptocurrency?

If you want to invest in any cryptocurrency then there should be some reason behind it. Either you like the fundamentals or you see a huge upside potential or just because it has a dog face in its currency or maybe because Elon Musk recently tweeted about this. Whatever the reason maybe, you should know how you can conduct proper research before investing and mostly on what idea or project you are putting your money into.

Questions you must ask before investment

First of all, you need to know who is the founder, what is the history of this coin, the development team and most importantly why it has been created and what is the vision of the founder?

If you are new to the scene, you can start your research from CoinMarketCap.com, here you will find cryptocurrencies in order of their market capitalization. Once you become familiar with the name of those cryptocurrencies you can start your research on individual coins.
In CoinMarketCap.com if you click on any cryptocurrency, you will get a lot of details about it. Let me tell you the most important details you should look for. Once you enter into any particular coin (Crypto) first check out their website. You’ll find a little information about the coin, read their blog where they give updates about their currency, check their FAQ section to resolve the basic queries you have in your mind. Once you are done with the detailed analysis of the website come back to coinmarketcap.com.
Look for the “Whitepaper” of the particular coin. “Whitepaper” explains to you the vision behind the cryptocurrency and explains other necessary details you should know including technical information and their plan to succeed with the coin in future. If you fail to find any “Whitepaper” of a particular Cryptocurrency on the website or in Google, you should consider that as a red flag. [You can check the whitepaper of Bitcoin here].
Now that you have some information and understanding of the coin you should check what opinions others have about this particular coin. In CoinMarketCap.com itself you’ll find community links where people talk about the coin. You can also follow their social media account, which must be available on that coin’s website.
If you are a techie, you can also check out their source code, which is also available in coinmarketcap website.
The website also provides you with other basic information like what is the present price, historical price and charts along with the present coin circulation.
Other than that, you must keep up with the upcoming events of that cryptocurrency or at least you can watch the same on YouTube or on other social media platforms. This information you will easily get on that coin’s website. Or on coinmarketcap website.

Now that you are done with the research, let me quickly teach you how to buy any cryptocurrency within seconds.

How to buy cryptocurrency?

Much like the stock market when you decide to buy or sell any cryptocurrency you need to visit any Crypto exchange. Crypto exchanges are of two types:

1. Centralized Exchange,

2. Decentralized Exchange (DEX).

Each of these has its own advantages and disadvantages. In a Centralized Platform, someone or some company is the owner of that exchange and whether you like it or not they have control and authority over your cryptocurrencies. The same example can be used in case of a few stock broking companies, but the stock market has other regulatory authority to safeguard the customers in case of any mishap. Sadly, as crypto is decentralized there cannot be any authority to protect customer interest. Some exchanges with the help of their goodwill take undue advantage of their customers. Like in this year only, one Turkish crypto exchange ran away with $2billions of customer’s crypto assets [Here].

But also, if you are a trader or your purpose is to make some quick bucks from cryptocurrency, your best option is to use these centralized and popular exchanges as they have more liquidity than decentralized platforms. Some of the popular centralized crypto exchanges are Coinbase and Coinbase Pro, Binance. And if you are from India then Wazirx, Coindcx go, Zebpay. You can open your account with whoever suits you. Fill up your basic details and link your bank account and fulfil the KYC procedure. Then you are free to buy whatever crypto you like.

The beauty of Decentralized platforms is, it has no authority or control over your assets, you have the private keys of your Cryptos. Just for an example, if tomorrow the state government bans cryptocurrency in your state, your centralized crypto platforms will face a hit in their operations and there will be a very high chance that it will have to shut down its operations legally and with that your cryptos will be lost and you will never get any money back (most likely). Whereas, when you have your private keys your cryptos are safe. No matter whoever bans it, they can never take it away from you. And remember, Crypto is globally accepted. So, it doesn’t matter if your country bans it, you can still use it for international transactions (if it is accepted).

But again, If your view is not for the long term, it is better not to use decentralized platforms as the liquidity is very low. Some of the popular decentralized crypto exchanges are, Uniswap (V3), MDEX.
Before you choose to use any centralized or decentralized platform, please do proper research on it. You can easily find popular Crypto exchanges names and other information on CoinMarketCap.com and in CoinGecko.com.

Why is the greatest investor of all time (Warren Buffett), Charlie Munger and the hero of the 2008 housing market crash, Micheal Burry, completely against cryptocurrencies?

How on earth can journalists stop themselves from asking about Bitcoin to the greatest investor of all time! But, both Buffett and Munger have a very different perspective to look at Bitcoin than normal human beings.

In an interview, Munger referred to Bitcoin as “Rat Poison”. In reply, Buffet said, “it’s Rat Poison square” [here]. Buffett’s view is that when you invest in an asset it should produce something for you so that at the end you own the asset itself plus whatever it has produced. Let’s just say you have invested in land and you are growing crops on it. So, at the end of the year, its gross value is {Land’s value (in rupees) + crop’s market price (in rupees)}. But in the case of Bitcoin, it does not produce anything, you are only buying in the hope that in future someone will be ready to pay more price for it. [You can check the full interview here.]

You have probably watched “The Big Short”. The story of the man who warned everyone about the 2008 housing market crash, Micheal Burry. Burry referred to crypto and Bitcoin as a “Speculative Bubble” and he again warned that a crash is coming[here]. Burry has faced several criticisms for his view on Bitcoin but he has been very upfront about it, many a time Burry tweeted his view on Bitcoin and why he believes that this will not end well! In one of his tweets, he said: “The problem with #Crypto, as in most things, is the leverage. If you don’t know how much leverage is in crypto, you don’t know anything about crypto, no matter how much else you think you know”.
To his followers, Burry also sent a strong message by posting “Knowing saves half the battle. Got it? It’s not hard. Analyze, think independently, be informed, find the data, and you’ll know a lot that no one else does.”[Link of some of the tweets are given here].

Conclusion : what can be a practical approach if you want to enter the crypto scene now?

If you have already done your research or the daily crypto news and announcement excites you way too much but you are also cautious about losing your hard-earned money! Then what can be a practical approach?

It is always suggested to start with your ‘WHY’. Do your own research. Try to find out if the particular coin has any real use or the fundamental strength required for the future. If the founders are visionary or not! And if you are investing in meme coins just because it is going up in price, nine out of ten times you will lose money in future.

Nobody knows whether investing in Crypto is actually an investment or mere speculation. So, the suggestion is to always invest what you can afford to lose. [Nothing contained here is financial advice, it is for education purposes only].

References

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Adoption rights of same-sex couples

By

Diganth Raj Sehgal

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October 7, 2021

0

Transgender Persons (Protection of Rights) Rules — Image source - https://bit.ly/33Ny7lC

This article has been written by Shohom Roy, from Symbiosis Law School, NOIDA. The article highlights the hurdles faced by same-sex couples while trying to adopt children, even after the revocation of Section 377 in India.

Table of Contents

Introduction

Adoption is the creation of a parent-child relationship through a legal and social process. It is a procedure mentioned under Section 2(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 through which a biological child of one set of parents becomes the child of another set of parents or a single parent. Indian adoption policies have been coloured by social prejudices and a lack of sensitivity towards child welfare. Legislations like Juvenile Justice Act, 2000 have been amended to imbibe the principle of secularity and thereby allow adoptions irrespective of the communal and religious persuasions of the child and the parents. However, the legislation failed to create equality between adopted and biological children. This legislative flaw was cured by the Juvenile Justice (Care and Protection of Children Act) 2006, which allowed an adopted child to be treated as a legitimate biological child of the parents and granted all the rights, privileges and relationships arising out of the relationship. The legislature has however failed to pay heed to the civil rights of same-sex couples who would want to enjoy family life by adopting children.

Some legislations on adoption

The Central Adoption Resource Authority (CARA) is a statutory entity under the Ministry of Women and Child Development. It serves as the main organization for Indian child adoption and is responsible for overseeing and regulating both domestic and international adoptions. In compliance with the requirements of the Hague Convention on Intercountry Adoption, 1993, adopted by the Government of India in 2003, CARA has been recognized as the central authority to deal with inter-country adoptions.

Hindu Adoptions and Maintenance Act, 1956

The Hindu Adoptions and Maintenance Act (HAMA) was enacted in India in 1956. It governs the legal process for Hindu adults to adopt a child and their legal responsibility to support diverse family members. However, according to Sections 7 and 8(c) of the HAMA, if the spouse is insane, has abandoned the world, or has forsaken his or her children, such authorization will not be required. Similarly, this rule permits unmarried men and women to adopt a child if they are of sound mind and have reached the age of majority.

According to Section 2(1) of the Act, a Hindu does not just refer to someone who practises Hinduism but also includes Buddhists, Jains, Sikhs, Virashaiva, Lingayat, and members of the Arya Samaj. Brahmo and Prarthana devotees are also included in the Hindu definition. In effect, the Hindu Adoption and Maintenance Act applies to everyone who is not a Christian, Muslim, Parsi, or Jew and lives in India. The words “spouse” and “wife” are used in Sections 7 and 8 of HAMA, implying that the Act does not recognise adoption by same-sex couples. Furthermore, the ability for adoption is explained for Hindu males and Hindu females, leaving a grey area when it comes to applying such regulations to third-gender couples.

Adoption Regulations, 2017

In terms of restrictions, the Adoption Regulations, 2017 is far more stringent than the HAMA. Similar to HAMA, unmarried men and women are eligible to adopt as long as they are mentally, emotionally, and financially healthy and do not have a life-threatening illness. Apart from that, the Regulations prohibit a single man from adopting a female child, but it does not prohibit a woman from adopting a boy child. This is in contrast to Section 11(iii) of the HAMA, which allows a single male to adopt a girl child if the two are at least twenty years apart in age.

Juvenile Justice (Care and Protection of Children) Act, 2015

This Act was enacted in the year 2015 to unify and revise the laws associated with children who are asserted and found to violate the law. The child requires care and security by taking into account their basic demands through legitimate consideration, assurance, advancement, treatment, and societal re-mix. These must be combined with child-friendly strategies for problem-solving and issue-resolution for the child’s most progressive growth.

Section 57 of the JJ Act covers the eligibility of Prospective Adoptive Parents (“PAPs”). “No kid shall be placed in adoption to a couple unless they have had at least two years of solid marital relationship,” according to one of the requirements. As same-sex marriages are not recognized in India, same-sex couples are unable to establish a two-year stable marital connection, making them unsuitable to be PAPs.

Contemporary issues

Arun Kumar Sreeja v. Inspector General of Registration (2019)

The judiciary in the Navtej Johar judgment had decriminalized the homophobic legislation and recognised the rights of same-sex couples under Indian law. However, the social stigma of the people remains a major obstacle before the exercise of certain rights by same-sex couples. Even if these rights are recognized, they are not exercisable. While the Supreme Court has dismissed a petition for the recognition of civil rights like adoption and marriage for members of the heterosexual community, the Madras High Court has taken a different stance in the case of Arun Kumar Sreeja v. Inspector General of Registration (2019), in which Arun Kumar got married to Sreeja, a transwoman, on 31 October 2018 at a temple in Tuticorin, as per Hindu rites and customs. When they submitted a memorandum for registration of marriage to the Joint Registrar No. II of Tuticorin, the Registrar refused to register the same. The petitioners challenged this decision before the District Registrar of Tuticorin vides proceedings dated 16 November 2018, who in turn confirmed the Joint Registrar’s decision on 28 December 2018. This decision was challenged before the Madras High Court.

Issue

Whether the term ‘bride’, as mentioned in Section 5 of the Hindu Marriage Act (HMA) meant only women, or included transgender persons as well, given that Sreeja was a transwoman.

Decision

The Court stated that a marriage solemnized between a male and a transwoman, both professing Hindu religion, was a valid marriage. The Court stated that transgender persons had the right to decide their self-identified gender, as upheld by the Supreme Court in NALSA v Union of India (2014), which has been reiterated in Justice K. Puttaswamy v Union of India (2018) and again in Navtej Singh Johar v Union of India.

The Court also held that the expression ‘bride’ in the HMA cannot have a static meaning and must be interpreted in light of the legal system as it exists today. The Court then cited Article 16 of the Universal Declaration of Human Rights, which includes the right to marry as a human right as well as Shafin Jahan v Asokan K.M. and Ors (2018), where the right to marry a person of one’s choice was held to be integral to Article 21 of the Constitution of India. The Court also went on to cite Justice K. Puttaswamy’s statements, where the Supreme Court referred to the US Supreme Court decision in Obergefell v Hodges (2015), in which the Court had noted that it would be contradictory to recognise a right to privacy concerning other matters of family life and not concerning the decision to enter the relationship, that is the foundation of the family in society. Since the Constitution of India is an enabling document that is inviting transgender persons to join the mainstream, they cannot be denied the benefits of social institutions that are already in place in the mainstream.

The Court, therefore, held that refusal to register the marriage of Ms Sreeja would amount to a violation of her fundamental rights under Articles 14, 19(1)(a), 21 and 25 of the Constitution of India and quashed the orders of the Joint Registrar No. II and the District Registrar of Tuticorin and directed the Joint Registrar No. II to register the marriage of the Petitioners.

The Court also addressed a second issue on sex reassignment surgery (SRS) or Intersex Genital Mutilation (IGM) of intersex children. The Court pointed out that according to the judgement in S. Amutha v C. Manivanna Bhupathy (2019), consent of a parent cannot be considered as the consent of the child and as held in NALSA, no one shall be forced to undergo medical procedures as a requirement for legal recognition of their gender identity. The Court directed the Government of Tamil Nadu to issue a Government Order to ban SRS on intersex infants and children. The Court also noted that since Arun Kumar, the first petitioner was from an SC community, they were entitled to obtain financial incentives under the Dr Ambedkar Scheme for Social Integration through Inter-Caste Marriages.

Laxmi Kant Pandey v. Union of India (1984)

In this case, the Court clearly recognized that “every child has the right to a family”. This right could be interpreted to incorporate the right to be adopted. In addition, Article 39(f) requires the government to formulate policies to ensure that children have opportunities and facilities to develop in a healthy, free and dignified way. Therefore, forcing a child to live in an institution and depriving them of their right to family is tantamount to depriving them of their freedom and dignity in life, and therefore violates our national policy guidelines. Also, in the case of the Indian Hotel and Catering Association and Anr. Vs. In Maharashtra (2019), people believe that the country cannot impose its own moral values on society. Depriving a child to be adopted by the LGBTQ+ community is equivalent to the application by the state of its stereotypical morality.

Impediments to adoption by same-sex couples

The Indian legislations create ambiguity by mentioning that marital status is not considered when adopting a child. However, this provision is applicable only for single individuals who want to adopt a child and whenever a couple wants to adopt jointly the law mandates the marital relationship and consent of both spouses. Since same-sex marriages are not legalized in India, these legislations defeat the very intention of decriminalizing homosexuality by limiting various civil liberties of same-sex couples. The oppressive legislations like Hindu Adoption and Maintenance Act, 1956, Juvenile Justice Act, 2015 and the Adoption Regulations which prevents unmarried couples from adopting children are against the fundamental rights guaranteed under Articles 14, 15 and 21 of the Indian Constitution.

Indian adoption legislations fail to clear the classification test of Article 14 since the unjust classification among individuals created by these Acts creates room for discrimination between married and unmarried couples. There are no reasonable objectives that could be achieved through such classification. It violates the constitutional values of equality before the law and equal protection under the law. The adoption laws are in contravention of the fundamental right to protection from discrimination, guaranteed under Article 15. Same-sex couples are guaranteed the right to live with dignity and honour under Article 21 of the Constitution. It includes the right to individual choice, autonomy and self-determination. Marriage depends on individual choice and any laws which are arbitrary and unfair or discriminatory against unmarried people either individually or collectively are ultra vires of the Constitution.

Repercussions of the legislative drawbacks

In India, same-sex marriages are illegal; hence homosexual couples are unable to adopt a child jointly. The law prevents LGBTQ+ couples from adopting children together proving that they are still not treated equally in the eyes of the law. As a result, same-sex couples are restrained from adopting since the child should not be reared in an “inferior family”. What is paradoxical, though, is that the law allows a child to be raised as an orphan without both parents rather than being raised by homosexual and trans couples. While LGBTQIA+ couples are not eligible to adopt, India’s orphan population is growing by the day. According to a new study by an international charity for orphaned and abandoned children, India currently has 20 million orphans, a number that is expected to rise to 24 million by 2021. The majority of orphanages provide abysmally inadequate service in the orphanage. The denial of adoption rights to members of the LBTQ community harms the dignity of these people since these discriminations are based on their sexual orientations and not on their capacity or merit as a parent.

Adoption rights in foreign jurisdictions

Same-sex couples are still deprived of adoption rights in various foreign countries. Indian legislation like the HAMA and JJ Act allows a single individual to adopt a child irrespective of his sexual orientation or gender. However, the law discriminates against same-sex couples by disregarding their adoption rights. However, some of the liberalistic countries in the European Union, the U.S, South Africa have enacted progressive laws concerning the rights of same-sex couples. Even the United Kingdom, which had enacted the legislation criminalizing homosexuality in India, has legalized adoption by same-sex couples jointly in contrast to their Indian counterparts.

European Union

A country adopting the law of another country as its legislation might lead to several legal inconsistencies. For example, a same-sex marriage conducted according to the laws of the Netherlands, Belgium or Spain is not recognised in the UK. The spouses are thought to be in a civil partnership in such cases. Therefore the European Court of Human Rights plays a pivotal role in protecting the right to respect for family, life, right to marry and the right to be safeguarded from discrimination based on sexual orientation within the European Union. The European Convention on Human Rights prohibits the Member States from discriminating based on sexual orientation in adoption proceedings. The landmark case of E.B v France (2008), has altered the landscape of parental rights for the LGBTQ community in Europe. By rejecting the stance taken in previous judgments like Salgueiro da Silva Mouta v. Portugal (1999) and Frette v France (2002), where custodial and adoption rights were restricted based on sexual orientation, the ECHR in the case of E.B v France utilized the principle of ‘best interest of the child” to mandate that domestic authorities are prohibited from making distinctions according to sexual orientation in adoption proceedings according to the Convention for the Protection of Human Rights and Fundamental Freedoms. The European Convention on the Adoption of Children envisions a broader concept of family and provides a widespread prohibition on discrimination, thereby further strengthening support for same-sex families

United States of America

The United States of America has been a bastion of the constitutional value of individual liberty. However, same-sex couples were denied several rights under the American Constitution. The judiciary played an active role in eradicating the discrimination faced by same-sex couples due to social non-acceptance and legislative inaction. In the case of De Boer v Snyder (2014), the Law of the Michigan State prohibiting same-sex marriages and joint adoption was declared unconstitutional by the United States Court of Appeals for the Sixth Circuit. In the famous case of Obergefel v Hodges (2015), the U.S Supreme Court declared that discriminating against homosexuals is against the ethos of the Constitution and the value of individual liberty is equal for every individual within the society. This judgment has led to various judicial pronouncements and legislation legitimizing adoption for same-sex couples.

South Africa

A former colony of the British Empire, South Africa shares several features with Indian law. Despite societal prejudices, South Africa has been one of few common law countries that have recognized the rights of same-sex couples. The Constitutional Court of South Africa in the case of Ministers of Home Affairs vs. Fourie (2005), had rejected the stereotype assumptions prevalent at that time and validated marriage between individuals belonging to the same sex. The criticism of the Court regarding the dehumanizing conditions of life for members of the LGBTQ community had prompted the government to implement the Civil Union Act, 2006 which legalized same-sex marriage in the country. This judicial and legislative action ultimately led to contentions against the discrimination between married and unmarried couples that did not allow joint adoption for unmarried same-sex couples. In the case of Du Tuit and Another v Minister of Welfare and Population Development and Ors (2002), the Court held that the Child Care Act, 1983 was against the principle of the best interest of the child and values of the South African society. It was established that the discriminatory Act must be amended to ensure parity between all members of the community.

United Kingdom

The UK had legislations that initially discriminated against same-sex couples by extending adoption rights to married couples and single individuals only. Nevertheless, the Adoption and Children Act, 2002, allowed unmarried same-sex couples to adopt children. The government introduced regulations illegalizing discrimination based on sexual orientation which ultimately led to the enactment of the Equality Act, 2010.

Therefore, in light of the concerns for individual liberty and prohibition on discrimination various countries have disregarded the prejudicial notions of the conservative majority and created a legal framework that protects the interests of the vulnerable minority.

Conclusion

Members of the LGBTQ+ community are also citizens of India, with equal rights in the socio-economic, political, and cultural spheres. Because our society is secular, democratic, and republican, every citizen is treated equally regardless of sexual orientation, gender, or other factors. The case of Navtej Singh Johar v. Union of India decriminalized same-sex couples’ voluntary sexual activity. It puts LGBTQ+ couples on an equal footing with other couples by getting rid of the draconian Section 377 of the Indian Penal Code, 1860. The Juvenile Justice Act and Adoption Regulations passed in 2015 and 2017 failed to evolve with the jurisprudential and societal growth by allowing only heterosexual couples and single individuals to exercise adoption rights. These laws violate Article 14, which guarantees equality to everyone; and Article 15, which outlaws discrimination based on race, gender, or sexual orientation. and also Article 19, which grants freedom of speech and expression. Not only should the state allow same-sex marriages, but it should also alter existing legislation to recognize adoption by same-sex couples. Children who are victimised by this widespread ambivalence would benefit substantially if governments legalized same-sex marriages and parenting.

References

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Important clauses in a modelling agency agreement

By

Abanti Bose

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October 7, 2021

0

How-do-you-organize-a-Runway-Fashion-Show (1) — Image Source: https://rb.gy/blxan2

This article is written by Akshay Jaulkar, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Ruchika Mohapatra (Associate, LawSikho) and Dipshi Swara (Senior Associate, LawSikho).

Table of Contents

Introduction

Like any other industry, the modelling industry also needs robust and well-defined agreements to create a win-win situation for both the Model and the Modeling Agency.

In any situation, it is crucial that the parties involved are satisfied with the agreements between them which later yields better output and meets client requirements. Most Modeling Agencies works as an aggregator of profiles suitable for the fashion, film, advertising, and marketing industry.

Those models who are well established can hire managers and/or lawyers to get the agreement reviewed, but what about those who are struggling to get any work and are completely naive to the complexities of the modelling world? Chances are either they might get exploited due to zero or very limited knowledge of the legal aspects of the contracts or may get trapped into a vicious cycle of dissatisfaction.

Some might overlook or simply neglect the agreement out of happiness, desperation or as a sigh of relief that they finally have a chance to show their talent to the world. Another factor for such desperation is that most of the models earn until they reach the age of up to 40 years which means they have a very limited time in the modelling industry to reach and climb up the ladder in order to achieve success, money and fame.

As compared to an agency, models are more vulnerable and therefore, it is necessary for a model to know for which project their portfolio will be used, duration of the agreement, remuneration that will be paid, agency’s commission, whether the agency possess all the necessary licenses to perform such works, the governing law and the terms for termination of the agreement etc.

Types of modelling agreements

Typically, there are 4 types of modelling agreements.

Mother agency agreement,
Exclusive agreement,
Non-exclusive agreement,
One time agreement.

Let us take a quick look into each of the aforementioned agreement types.

Mother agency agreement

This type of agreement is usually suitable for a newcomer. Mother agency is the agency where the model is signed first and that will provide opportunities to the new models due to their well-established contacts. Such agencies promote their models either directly for the client or to other agencies and in return seek commission (typically 5-10%) from the model’s income. Since there might be layers of the agencies while the model actually performs for the client, for a model, it is essential to negotiate and agree upon a better structure of commission with the mother agency.

Exclusive agreement

Such agreements put a restriction on the models and obligate them to perform exclusively for agency nominated brands or markets. These agreements are more common for fashion and editorial models. Though the model can work with several agencies at the same time but are restricted to work in one market for one brand. Usually, under such agreements, the models get paid better due to the exclusivity that they must maintain.

Non-exclusive agreement

Such agreements are more common for commercial models. They are free to work with many agencies at once. Many models prefer to work in such agreements as it offers flexibility. The model may not receive hands-on experience of the agency in the long term, but due to several opportunities, the model may earn better and may even save on the commission to be paid to the agencies.

One time agreement

As the name suggests, these agreements are made with the modelling agency only for one project. Such an agreement clearly mentions what project the portfolio will be used for. Typically, the model is restricted to work with similar brands until the completion of the project.

Essential clauses in a modelling contract

To safeguard the interests of the model and the modelling agency, the following are the few clauses that shall essentially form the part of the agreement:

Obligations of the model and the agency

Obligations of the parties shall be clearly defined to avoid disputes that may arise due to assumptions made by one party for another or vice versa. Such a clause defines the precise responsibility and accountability of each party.

Confidentiality

Along with the general information, a model has to give a lot of personal information such as body measurements, marital status, photos, videos etc. while entering into an agreement with an agency. The rightful use of an individual’s data is the ultimate responsibility of the agency. Misuse or misplacing such significant data may lead to unforeseeable problems for the model and therefore, terms related to confidentiality and its breach shall be clearly mentioned.

Term of the agreement

For how long the model and the agency has to deliver their obligations under the agreement is defined under this clause.

Remuneration and commission/payment terms

Whether a newcomer model or a well-established model, the amount that will be earned by the model generally depends on what percentage of the model’s income will be charged by the agency as commission. In general, the top modelling agencies charge up to 20% of the model’s earnings.

In the case of mother agency agreements, there can be involvement of several other agencies, in such case, the commission percentage shall be well negotiated.

Representation and warranties

A model shall warrant that the agency can use his/ her portfolio for providing opportunities whereas the agency shall warrant that it shall make the rightful, and legal use of the model’s data. In addition, the agency shall warrant that it possesses all the required licenses, permits, approvals and further, possesses established contacts in the industry to perform as a modelling agency.

Such a clause will protect the models from the consequences if they unknowingly enter into an agreement with a fake agency.

Termination and consequences

Termination and its consequences, in the event of default and in the event of force majeure shall be properly drafted. It is to be noted and negotiated that the termination rights shall be equal for the model and the agency and further, the model shall be properly compensated, in the event of termination.

Liquidated damages or limitation of liability

In general, the liability of both parties shall not exceed 100% of the agreement value. However, in the event of fraud, misrepresentation, spreading fraudulent information, gross negligence, personal or bodily injury, the liability shall not be limited.

Indemnification

With the inclusion of this clause, both the parties indemnify, save, defend, hold harmless each other against the claims, actions, demands, judgements, costs, expenses, losses and damages that may arise while performing obligations under the agreement. It is the best way to transfer the risk between the parties. This clause also helps to protect the parties against any indirect or consequential damages from the third parties.

Governing law and dispute resolution

In the event of any default, if any party wants to take legal action against the other, it is better to already mention such an arrangement in the agreement or otherwise, the dispute may even start for deciding where to resolve the dispute. The agencies and models are spread around the world so therefore it becomes necessary to agree upon a law that will govern the agreement, the procedure for the dispute resolution, the jurisdiction under which the agreement shall be interpreted etc.

Consequences of breach of a modelling agreement

In the event of a material breach of any of the obligations under a modelling agreement, generally, a warning notice is given to the defaulting party to rectify within the specific time period. After which the settlement may be done with compensation against the claim made, or by seeking injunctive relief from the court and at last by terminating the agreement.

Conclusion

For a model, especially for a newcomer, it is advisable to hire an agency that is established and known for transparency in the market, even if they charge more or take a major cut from the model’s remuneration, but by doing so the Model will always be in safe hands and protected. A model can choose under which type of agreement he/she is willing to work, according to its suitability, however, the operative and typical clauses of the agreement shall be carefully reviewed, well negotiated and properly drafted.

For the modelling agency, having a well-drafted agreement will save a lot of time and prevent avoidable disputes. Since mostly the models are not from a legal background it is advised to use a simple and lucid language for the agreement, if possible, a copy can also be made in the native language of the model. A well-drafted agreement will further improve the modelling agency’s image in the market as a reputed and transparent agency. In short, a win-win situation for all the parties involved can be achieved.

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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8 best colleges to get a law degree in India

By

Rachit Garg

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October 6, 2021

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Table of Contents

Introduction

Law was always very important to human existence. Humans started making laws to regulate societies. Since then it has kept on evolving and now the law is a very progressed form of justice. India has produced some of the top law experts in the world. It is because India has a plethora of great law colleges that produce these Alumni of law. These law colleges inspire so many young students to join the field of law. If you also still think: “I need someone to help me write my thesis for me in law” you can ask ThesisGeek experts to provide you with excellent results because a lot of students are interested in qualified experts.

India also has the second biggest population on the map of the world. Given that country does need law experts to fulfill its needs. Because of the great number of options, sometimes it becomes a hard task for students to pick the institute. Numerous factors students have to consider along with online essay writing in the program offered by the colleges.

We have compiled a list of the best law colleges in India to help you shortlist your options. Let’s have a look at the options you can avail yourself of in India.

The WB National University of Juridical Sciences, Kolkata

Kolkata is home to this amazing law institute named The WB National University of Juridical Sciences. It is a fairly new institute and was founded back in 1999. It is developed on the basis of modern law. At the same time, the coursework provides you a proper insight into old law. The university gives options to do a full five years bachelor’s degree that can be led by masters. The WB National University of Juridical Sciences also offers doctorate and Mphil degrees in law. You can also join them through online courses. They have one of the best law faculty in India.

Symbiosis Law School, Pune

Now if you are anywhere near Pune, you should consider this prestigious institute for your law degree. Symbiosis Law School, Pune was founded in the year 1977. This was the time when India was developing new laws and the country was trying to take a proper hold of the judicial system. The alumni of this law school have played an integral role in the law-making in the country. Being part of this institute is an honor to any law student.

Faculty of Law, Banaras Hindu University, Varanasi

Banaras Hindu University has made its mark even before the partition. Thi more than a hundred-year-old institute is responsible for training some of the best names in the world and India’s progress. The faculty of law was established 6 years after the foundation of the university. The faculty has never looked behind since then and secured its position at the top of the law institutes in India.

Faculty of Law, University of Delhi, New Delhi

Right in the capital, you find this amazing institute of law that is the Faculty of the Law University of Delhi. The faculty existed before the partition and has made its name in the field. It is still one of the best options for LLB, LLM, and doctorate of Law. The admission is obviously hard because a lot of students want to be part of the faculty. However, if you have earned good grades, that should not be a problem.

National Law School of India University, New Delhi

New Delhi being the capital of the country is very fertile in law schools. One of them is the National Law School of India University. You can opt for this relatively new institute of law. This law school provides you with degree programs as well as some courses too.

Faculty of Law, Aligarh Muslim University, Aligarh

When talking about the most prestigious law school of India, how can we miss the Faculty of Law Aligarh Muslim University. It is the oldest modern law school in India founded back in 1891. It has produced some of the greatest names in the history of Indian law. The faculty members are very qualified and the honor of being part of this law school is beyond words.

National Law University Odisha, Cuttack

Founded in 2009, the National Law University Odisha has already made its palace in the top institutes. The National Law University Odisha was established on a very modern approach. Students can join the university after passing CLAT. You can apply for graduate and postgraduate programs on the basis of your CLAT result. If you want to study in one of the top ten institutes of India that are modern then this should be your choice.

ILS Law College, Pune

This law school is decades old and holds a great space in the law schools. ILS Law College offers all major degrees in law to its students. If you are a bright student and lucky then you can become part of the exchange programs too. In these programs, you get to go to Greece to study law for a semester and learn more about European law. This can make your degree even more significant. The college has maintained its position in the top law schools for the past so many years.

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How can a jewellery brand ambassador protect their personality rights

By

Abanti Bose

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October 6, 2021

0

Image Source: https://rb.gy/txzf2a

This article is written by Durva Suhas Indulkar, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Dhruv Shah (Associate, LawSikho) and Dipshi Swara (Senior Associate, LawSikho).

Table of Contents

Introduction

Generally, people in India are largely influenced by the products that are endorsed by celebrities and such products are consumed on a large scale on a day to day basis in every household. Celebrities hold a different level of influencing power over consumers with respect to the brands that they endorse or market. For example, daily use products such as a washing machine detergent endorsed by Mr. Amitabh Bachchan or expensive commodities such as gold or diamond jewellery endorsed by Deepika Padukone or Priyanka Chopra. In this article, we shall take a brief look at the legal framework in India that deals with the protection of celebrity rights and famous personalities, which is also known as personality rights and how these rights are helpful for a jewellery brand ambassador to protect his personality rights as an endorser of a jewellery brand.

What are ‘personality rights’?

Personality rights are the rights of a person that are related to his or her personality. Personality rights generally consist of ‘Right to privacy’ and ‘Right to publicity’.

Right to privacy: The right to privacy is one of the fundamental rights mentioned under Article 21 of the Constitution. The right to privacy is the right of a person where his personality cannot be represented publicly without his/her permission. It is basically a broader right and you do not need to have fame to have the right to privacy.
Right to publicity: Right to publicity is the right that protects against the misappropriation of a person’s name, likeness and any other personal identity for commercial benefits. It is a negative as well as a positive right. A person’s publicity right consists of his right to commercialize his fame (which also includes the name of the person).

Therefore, we can say that personality rights is a combination of right to privacy and right to publicity.

Who can acquire personality rights?

Not all individuals are entitled to their own personality rights. Personality rights are generally acquired by people who have gained any kind of fame or the ones who have acquired the status of being celebrities. Personality rights are generally vested in people who are public figures by virtue of them having acquired a kind of status and personality which altogether adds a commercial value to their individual personality.

Why is it known as personality rights?

Personality rights are unique rights that have gained a lot of importance today because of the increase in the number of celebrity endorsements. One single image of a famous personality has a tremendous effect on the reputation of a product, which he or she is endorsing.

Every person is entitled to enjoy the result of their hard work and endless efforts. Celebrities work very hard to build an image in society through their work. Their continuous efforts and hard work bring them to a position of a celebrity. They create a personality for themselves. Single misuse of their name, image or their style might affect the personality or the reputation that they create. Therefore, it becomes necessary that they should have a right to protect their personality and to have complete control over its exploitation.

How can a jewellery ambassador protect their personality rights?

In India, there is no particular act or statute to protect personality rights. However, personality rights are recognized in the form of right to privacy and right to publicity also known as publicity rights. Even though there are no statutes or laws in India to protect personality rights, India has started recognizing personality rights through various significant judgements.

A celebrity acquires his status through intellectual, physical and emotional efforts. Therefore, the celebrity should be the only person who can authorize the manner in which his personal traits, goodwill and reputation can be used commercially. This right requires legal protection, however, in India there are no statutes to protect these rights but the legal jurisprudence of personality rights has evolved over a period of time due to various significant judgements which have contributed to recognizing and understanding the importance of personality rights of various individuals.

Protection under advertising legislation

The advertising legislation which governs all the advertisements is the Code for Self-regulation in Advertising which is also referred as “Code” and is adopted by the Advertising Standards Council of India. The Code mandates that no advertisement should contain any kind of unauthorized reference to any person, firm or institution such that the product advertised gains an unfair advantage which brings any kind of harm to the reputation of the person, firm or institute referred to. It also states that if and when required by the Advertising Standards Council of India, the advertiser or advertising agency should be ready and willing to submit the authorization granted by the person, firm or institution referred to in their advertisement. As per the Cable Television Networks Rules, 1994, no advertisement shall be carried in the cable service which violates this Code. The Standards of Practice for Radio advertising and the Code for Commercial Advertising on Television also contain similar provisions.

The framework of personality rights in India can be better answered by referring to a very famous judgement with regards to personality rights and which also specifically deals with the personality rights of a jewellery ambassador.

Protection under the right to privacy

The right to privacy is a fundamental right mentioned under Article 21 of the Constitution of India. The rights that are included under the matrix of the right of privacy are: 1) To prevent any kind of public disclosure of private rights. 2) To prevent any form of prying into the personal affairs of a person. 3) To prevent any kind of false publicity. 4) To prevent misappropriation of a person’s name, image and likeness.

Personality rights in the form of the right to privacy were first recognized by the Supreme Court in R RajaGopal v State of Tamil Nadu (Autoshankar case). In this case, the court observed that: “The first aspect of this right must be said to have been violated where, for example, a person’s name or likeness is used, without his consent, for advertising or non-advertising purposes or for any other matter.” This is a landmark judgement and there have been many such rulings since then, by various Courts citing this judgement.

Another such example, highlighting the right to privacy is Shivaji Rao Gaikwad (aka Rajnikanth) v. Varsha Productions, in this case, the Superstar Rajnikanth moved to the Madras High Court for an injunction restraining the release of a movie titled “Main hoon Rajnikanth” invoking his personality rights. The superstar in his application stated that; a large section of the public across India is, therefore, likely to be misled into viewing such project/film on the mere belief that the said project/film has been approved by him. It is to prevent such widespread confusion among the public, besides maintaining his personal integrity; he has chosen to abstain from approving or supporting any project based on his personal self/personality. Besides, such film based upon Rajinikanth’s name, image or likeness would be a violation of his privacy and would subject him to needless embarrassment as he does not have any control over the content of any unauthorized or unapproved project/film. The Madras High Court after considering the suit stayed the order on the release of ‘Main Hoon Rajnikanth’ with its current title and content.

In the case of Titan Industries Limited v. M/S. Ramkumar Jewellers, the defendant, M/S Ramkumar Jewellers used an identical advertisement hoarding to that of Plaintiffs.’ The plaintiff was the owner of a well-known brand called ‘Tanishq’, the advertisement of which featured the famous couple Mr. Amitabh Bachchan and Mrs. Jaya Bachchan. Further, the defendant also did not seek any permission or get into any agreements with either the couple or the plaintiff before depicting the famous couple as endorsers of his jewellery products. In light of these facts, the Delhi High Court granted the permanent injunction explaining the right to publicity:

“When the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should not commercialize their identity but that the right to control when, where and how their identity is used should vest with the famous personality. The right to control the commercial use of human identity is the right to publicity”.

In the above case, the Delhi High Court also defined a celebrity as “a famous or a well-known person and merely is a person who “many” people talk about or know about”

Referring to this judgement, we understand that a Jewelry ambassador can protect his personality rights by using the right to publicity.

Conclusion

Even though Personality rights are not recognized under any kind of specific statutes or legal regulations, the Judiciary has recognized these rights in various significant ways. Therefore, any kind of unauthorized commercial exploitation of a celebrity’s identity or personality traits is a violation of his Personality Rights especially when the identity has been earned with hard work and dedication. It is high time that the legislature recognizes these personality rights exclusively not just for protecting celebrity rights but also to protect the consumers from any kind of misleading advertisements or promotions. Therefore, considering all the above-mentioned judgements and examples, it can be concluded that a jewellery ambassador can protect his personality rights in various ways such as by invoking the right to privacy, right to publicity and the protection which is provided under the advertising legislation.

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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Delaware : best state to incorporate businesses

By

Rachit Garg

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October 6, 2021

0

This article has been written by Mayank Jain, pursuing a Diploma in US Contract Drafting and ParalegalStudies from LawSikho.

Introduction

Delaware is one of the states of the U.S state situated in the Mid-Atlantic region. Delaware has their general assembly which consists of 41 members in the House of Representatives and 21 members in the Senate. Its constitution was established by Delaware’s Judicial Branch as follows: Delaware Supreme Court (the highest court of Delaware), Delaware Superior Court (Delaware’s trial court of general jurisdiction), Delaware Court of Chancery (handle primarily in corporate disputes), Family Court (deals domestic and custody matters) and Delaware Court of Common Pleas (jurisdiction over a limited class of civil and criminal matters). In this article, we are going to discuss why Delaware is the best state to incorporate businesses, why many companies choose Delaware as a state to incorporate their business, and what factors should be considered before any business incorporation in the state.

Delaware Court of Chancery

The oldest Business Court of America is the Delaware Court of Chancery. Delaware Court of Chancery’s Judgement or order is based upon the judges not on juries, as there is no jury trial in Delaware Court of Chancery, which helps companies with a speedy trial.

What is the role of the Delaware Court of Chancery?

The Court of Chancery has its jurisdiction over all equity-related matters. This tribunal’s litigation focuses on corporate concerns, trusts, estates, and other fiduciary matters, as well as disputes over land purchases and title to real estate, as well as commercial and contractual matters.

Why incorporate in Delaware?

Delaware has a very unique court. Delaware’s Court of Chancery is found to be the most respectful business court in the nation. Many LLCs and Corporations incorporate due to fair decisions of Delaware’s Court and expert judges of Chancery Court (appointed by the Governor) in business as well as corporate law. Delaware’s Court has also a good no. of case laws that almost covered all business and corporate laws: which assist upcoming business and corporate matters. Businesses choose Delaware for incorporation because the Chancery Court’s fair decisions are predictable, as there is no jury trial in Delaware’s Court. This is the reason why Delaware is occupied with incorporations of more than 65 percent of all Fortune 500 companies and more than half of all U.S. publicly traded companies.

Why is Delaware best suited to incorporate businesses?

The good reputation of Delaware’s Court: Delaware’s Court is the oldest business court of America with specialized knowledge and experience of corporate issues. Judges and attorneys of Delaware’s Court have a lot of expert knowledge of corporate complex issues, which help and protect corporations and LLCs from unfair decisions and lengthy court proceedings.

Flexibility for the structuring of a corporation: structure of the corporation is not rigid as in other states, Delaware’s corporate law for the corporation and board members are very flexible and liberal, as it allows one person to be the only director, shareholder, and officer of a corporation and also allow one person to hold all positions.

Geographical: Delaware does not restrict shareholders, directors, and officers to be residents of Delaware to incorporate corporations and LLCs.

Higher Privacy: Delaware’s law allows corporations not to disclose officers’ and directors’ names and addresses on the formation documents and make them confidential. It increases more privacy to corporations than other states.

Cost for Incorporation: Delaware comparatively affordable to incorporate corporations and LLCs. If we compare Delaware with other states then Delaware is one of the cheapest Countries in the Word for incorporation.

Raising Capital: it is easy to raise capital as a corporation of Delaware because many venture capitalists, angel investors, and other investors are already attracted by Delaware’s corporation and investors also preferred to invest in Delaware because of the enjoyment of incomparable tax savings.

Tax Advantages: Delaware’s law gave a lot of reliefs to Delaware’s corporations and their shareholders in taxes, like no income tax on businesses that are established in Delaware but do not conduct their business in Delaware.

Drawbacks of incorporation

As we see there are so many benefits of incorporating a business in Delaware, but mostly these benefits are more applicable and beneficial for large corporations and small corporations may not be able to utilize many of the above-stated benefits of incorporation. Anything that has benefits might also have drawbacks, setting up a business in Delaware also has its own drawbacks.

Most of these businesses are actually not operating from Delaware but are operating from the other states which lead to the imposition of the annual franchise tax in both these states. That means, the company is paying double annual franchise tax for conducting business in one state and corporations need to follow the necessary requirements of these states.

Factors that should be considered before incorporation

Many factors (including state’s tax structure, available workforce, available skilled or required workforce, family consideration) are involved while choosing the area to incorporate business. The owner oopts for that area that has higher flexibility, is business-friendly, and has an opportunity to grow. So, we will further discuss the main factors that should be considered:

Business Friendly: It is the most important factor that needs to be considered, that a state’s laws should be in favour of businesses and have a liberal policy for the corporation and not be rigid.

Tax Benefits: Every business wants to generate more profits and tax is a major cost for every business which they want to reduce, most of the states impose heavy taxes on corporations due to which corporations do not earn as they want.

Privacy: Privacy is also the biggest issue for the corporation, as corporation data and details are very confidential and may also affect their business, so every corporation wants to protect their details as much as they can. More privacy is beneficial for the incorporation.

Target market and viability: make sure that your product or services have enough market and the state has your target market to generate revenue at least for sustainability and growth of the business.

Legal Structure: Legal structure refers to the type of business that a person wants to incorporate, state of Delaware offers different types of legal business structures i.e., C corporation, S corporation, LLC (Limited Liability Company), Partnerships, Not for Profit Corporation and Foreign corporation. You should choose the best legal structure that satisfies your business and help you to attain more benefits for the same to obtain legal advice from a business attorney.

How to Incorporate your business in Delaware

Choose a Corporate Name

choosing a name that shows your business position, product, and services. The name should be unique and unregistered under state and federal law. You can register your corporate name under Delaware state law or federal law, in Delaware state law your corporate name is secured only or within Delaware state but if you registered your corporate name under federal law then your corporate name is secured throughout the U.S.

File a Certificate of Incorporation with the State of Delaware:

Corporations in Delaware are formed by filing a Certificate of Incorporation with the Delaware Division of Corporations. On the Division of Corporations’ website, you can get a blank form.

Fill out the Delaware Certificate of Incorporation with the following information:
1. The Delaware corporation’s name
2. Registered agent and registered office address in Delaware
3. The number of shares authorized and the par value per share (a par value is optional).
4. The incorporator’s name and mailing address
5. Incorporator’s name, date of incorporation, and signature
6. Fee for filing
Submit the completed Certificate of Incorporation to the Delaware Division of Corporations online or by mail,
The Certificate of Incorporation will be submitted online on the Division of Corporations’ website or through mail to the Delaware corporation. A Delaware corporation charges $89 for filling. The mailed filings process may take weeks, while the online filings process takes 1-3 days. However, a $50 expedite fee is charged by Delaware if the cooperation is needed the same day.

Appoint a Registered Agent

It is mandatory for every business entity to have a Registered Agent in the State of Delaware.
Requirements for Registered Agent as per Delaware laws:
An individual resident of the State of Delaware or business entity in the State of Delaware.
Must have a physical address in the State of Delaware.
The business may in itself act as a registered agent if the business has a physical address or is located in Delaware state.

Prepare Corporate Bylaws

Bylaws are important internal corporate documents. Bylaws present rules for managing a corporation, it is not legally necessary to file and maintain corporate bylaws, but suggested having corporate bylaws as it benefits corporations to obtain loans and create more authenticity in front of creditors, IRS, and other institutions.

Appoint Directors and Hold a Board Meeting

Initial directors are those directors who will serve on the board until the 1^st annual meeting of shareholders or until elected board members by shareholders, initial directors are appointed by the incorporators of the corporation. Incorporators also have to file and sign an “Incorporators’ Statement” reporting the names and addresses of the initial directors.

The corporation’s board of directors meeting shall be held at the place, where directors can authorise corporate officers, bylaws, select a corporate bank, issuance of shares of stock, and adopt an official stock certificate form and corporate seal. Incorporators or any director have to prepare corporate minutes in which directors’ actions shall be recorded.

Issue Stock

Issue stock to shareholders against capital contribution, capital contribution can be in terms of cash, kind, or both. It is a must to maintain a corporation’s stock transfer ledger, where each shareholder’s name and contact details should be mentioned.

In the corporation, the share of stock is allocated as security under Delaware state laws and federal laws, Title 8 Chapter 1 Subtitle 6 section 201. and section 202. Regulates the transfer of stocks. Securities act 1933 is a federal law that regulates the transfer of stocks throughout the U.S. and SEC (Securities and Exchange Commission) is a federal regulatory body of securities.

File an Annual Report and Pay Franchise Tax

It is mandatory to file an annual report and pay franchise tax for all corporations that are incorporated in Delaware. Delaware Division of Corporation is an authority, which receives annual reports and taxes. The last date for the corporation to submit an annual report and pay taxes is March 1^st of every year, and for the foreign corporation is June 30^th of every year.

Obtain an Employer Identification Number (EIN)

Every Corporation and organisation requires EIN (Employer Identification Number) to file tax returns and to pay employee’s salaries. EIN is also required or necessary to open a bank account. It is a unique nine-digit number issued by the IRS (Internal Revenue Service) to businesses to recognize or supervise them for tax purposes. EIN is also named FTIN (Federal Tax Identification Number). You can obtain or apply for EIN without filing fees at the IRS Website.

You may pay your taxes, file your annual report, search for a business entity, validate a certificate, check the availability of entity names, get your corporate forms and fee schedule virtually at the Delaware state website: https://corp.delaware.gov/ without visiting any office physically.

Delaware corporation and business entity laws

Title 8 Chapter 1

Section 101. Deals with how a corporation should be formed: any person, partnership, association, or corporation singly or jointly, with or without state residence, domicile, or state incorporation, may incorporate by filing with the Division of Corporation in the Department of State.
Section 102. Deals with the content of Certificate of Incorporation; the Certificate of Incorporation shall be containing the following points:

Name of the Corporation that shall contain any of the words from following: “company,” “association,” “club,” “corporation,” “fund,” “incorporated,” “foundation,” “society,” “institute,” “syndicate,” “union,” or “limited;

Total assets as defined under section 503(i), only in the case of where such corporation executes, acknowledges, and files with the Secretary of the state.

Address of the Corporation’s registered office in this state accordance with section 131(c), and the name of its registered agent;

Nature and purposes of the business, the purpose of the corporation shall be lawful act or activity.

Total number of shares of stock which the corporation shall have authority to issue and the par value of each share, or statement that all such shares are to be without par value (in the case of where a corporation is to be authorised to issue only 1 class of stock), Total number of shares of all classes of stock which the corporation shall have the authority to issue and the number of shares of each class and shall specify each class the shares of which are to be without par value and each class of the shares of which are to have par value and the par value of the shares of each class (in case of where a corporation is to be authorised to issue more than 1 class of stock).

Statement of Designations, powers, preferences, rights, qualifications, and limitations or restrictions which are permitted under section 151 of Title 8 in respect of class or classes of stock of the corporation.

Incorporator or incorporators’ name and mailing address

Name and mailing address of a person who serves as a director until the first annual meeting of stockholders or until their successors are elected and qualify (in the case of where incorporators’ power terminates upon the filing of the Certificate of Incorporation).

Section 103. Deals with execution, acknowledgement, and filing of the certificate of incorporation, Section 103(1) the Certificate of Incorporation shall be signed by incorporators if initial directors were not named.

Partnership is regulated under Title 6 Chapter15; Delaware Revised Uniform Partnership Act,

Limited Partnership is regulated under Title 6 Chapter 17

Limited Liability Company is regulated under Title 6 Chapter 18; Limited Liability Company Act,

Non-profit association is regulated under Title 6 Subtitle II Chapter 19; Delaware Uniform Corporate Non-profit Association Act.

Delaware corporation costs and fees

Corporation filing fee — The minimum fee is $89, but depending on how much stock is authorized and/or the stock’s par value, you may be charged more.
Stock fees – If you authorize more than 1500 shares with no par value, your filing charge will increase. The filing fee will increase by $0.01 per share if you authorize more than 1500 but not more than 20,000 shares. The filing fee will increase by $0.005 per share if you authorize more than 20,000 but less than 2 million shares. The filing fee will be calculated at $0.004 per share if you authorize more than 2 million shares.

Annual report fees– The cost of an annual report in Delaware is $50 for domestic firms and a $125 report fee is charged from foreign firms, incorporated in Delaware.

Franchise Tax – Filed in concert with your annual report is Delaware’s Franchise Tax. This tax has a $175 minimum payment and is payable every year on March 1. Authorized Shares and Par Value Capital are the two ways of calculating this tax. The minimal tax under the par value capital approach is $350.

Penalty– $100 is imposed as a penalty for not filing or filing an incomplete annual report on or before the given date i.e., March 1^st of every year. The penalty for a foreign corporation is $125 for not filing or filing an incomplete annual report on or before the given date i.e., June 30^th. 1.5% percent interest per month on unpaid tax balance imposed as a penalty.

Conclusion

Delaware found the best state to incorporate business from other states of the US and the world because of their business-friendly laws which help businesses to earn more profits and help businesses to grow more. Apart from statutes, Delaware found the most respectful business court which pronounces fair decisions and Delaware’s Court has expert knowledge and experience in business and corporate law. Delaware as a state provides so many benefits to businesses to incorporate their business in Delaware which we already discussed in this article and if you compare Delaware with other states, you can find Delaware is the best state to incorporate businesses. Many companies are already incorporated in Delaware and many start-ups are incorporated in Delaware every day.

References

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Power of states to list OBCs with respect to 102nd Constitutional Amendment

By

Rachit Garg

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October 6, 2021

0

This article is written by Harsh Gupta from the School of law, HILSR, Jamia Hamdard. This is an exhaustive article which deals with the constitutional validity of the 102nd constitutional amendment and subsequently with the power of the state to list OBCs.

Table of Contents

Introduction

Traditionally, the OBCs have been classified as Socially and Educationally Backward Classes (SEBCs) in the Indian Constitution, requiring the Government of India to support their educational and social development.

For example, OBCs enjoy 27% reservations in public employment and higher education. As castes and communities are added or removed according to social, education, and economic factors, the Ministry of Social Justice and Empowerment maintains a list of OBCs. As of January 2016, according to Union Minister Jitendra Singh’s response to a Lok Sabha question (whether the representation of SCs and STs is more than the prescribed percentage of reservation), 21.57% of Central government employees belong to the OBC category. Furthermore, in 2015, funds meant for OBC students were not used correctly or were underused by educational institutions to upgrade infrastructure as well as recruit faculty members from OBC backgrounds.

The affairs of the backward classes were handled by the Backward Classes Cell in the Ministry of Home Affairs until 1985. A separate Ministry of Welfare was established in 1985 (renamed in 1998 to the Ministry of Social Justice and Empowerment) to deal with issues about Scheduled Castes, Scheduled Tribes, and Other Backward Classes. It is the responsibility of the Ministry of Social Justice and Empowerment to formulate and implement policies related to social and economic empowerment of the OBCs as well as oversee two institutions established for their welfare, the National Backward Classes Finance and Development Corporation and the National Commission for Backward Classes. An in-depth discussion of the power of states in listing OBCs is presented in this article.

102nd Constitutional Amendment

102nd Constitutional Amendment was introduced by Thawar Chand Gehlot, who was the Minister of Social Justice and Empowerment on 5th, April 2017 and it was passed by the Lok Sabha on 10th April 2017, it was also presented in the Rajya sabha on the following day where the motion was adopted by Parliamentary Select Committee of 25 members under the chairmanship of Bhupendra Yadav. The Committee presented its report on 19th July 2017, then on 31st July 2017, for Lok Sabha’s approval. On the other hand, the Lok Sabha did not adopt the change recommended by the Rajya Sabha and the Bill was passed on 2 August 2018. The amendment introduced Articles 338B and 342A into the Indian Constitution.

Article 338B of the Constitution specifies the structure, duties, and powers of the National Commission for Backward Classes (NCBC). Whereas Article 342A states that, the President of India is given the power to declare a particular caste as a Socially and Educationally Backward Class (SEBC), which can be modified by the Parliament. Additionally, the amendment made changes to Article 366 in which clause 26 C was added which defines socially and educationally backward classes. Finally, the Commission was set up in 1993.

NCBC

Composition

The NCBC gained a constitutional status after the 102nd constitutional amendment was passed. According to Article 338B, the Commission shall be comprised of the following members, who are to be appointed by the President:

Chairperson;
Vice-chairperson;
Three other members.

Duties

According to Article 338B, the commission has the following duties:

Evaluating the effectiveness of the safeguards for socially and educationally backward classes provided under the Indian Constitution and applicable laws or orders of the Government and investigating matters related to such safeguards.
Investigating specific complaints relating to the deprivation of rights and safeguards of socially and educationally backward classes.

Approving the social and educational progress of the socially and educationally backward classes, as well as participating in their development and advising on it.
Reporting on the effectiveness of those safeguards to the President annually or whenever necessary. Making recommendations for measures that can be taken by the Central or state governments to effectively implement safeguards and other measures for the protection, welfare, and socio-economic development of the socially and educationally backward classes.
Taking any other action that may be required as part of the protection, welfare, and development and advancement of socially and educationally backward classes as determined by the Parliament. In addition, the Article gives the Commission all the powers of a civil court while investigating complaints regarding deprivation of rights and safeguards of the socially backward classes.

Upholding the constitutional validity of the 102nd Constitutional Amendment

Supreme Court in the case of Dr. Jaishri Laxmanrao Patil v. Chief Minister(2021) (3:2 ratio) ruled that the 102nd Constitutional Amendment, which also led to the establishment of a National Commission for Backward Classes (NCBC), stripped states’ power to identify backward units within their borders for quota in employment and admissions.
Five judge bench led by Justice Ashok Bhushan ruled against the Maratha reservation law and voted not to revisit the 1992 Indira Sawhney judgment capping reservation at 50 percent.
As to whether the 102 Constitutional amendment strips the right of states to identify the SEBC, Justice Bhushan authored a 412-page verdict for himself and Justice Nazeer.
Justice S Ravindra Bhat wrote the 132-page verdict, and Justices L Nageswara Rao and Hemant Gupta concurred in their separate judgments that states cannot identify SEBC as being under their territory after the 102nd Constitutional Amendment.
The majority judgment on this issue was written by Justice Bhat, who stated, “By introducing Articles 366 (26C) and 342A through the 102nd amendment, the President alone, and not any other authority, has the authority to identify SEBCs and list them in a list published under Article 342A (1), which shall be considered to include SEBCs in each state and union territory for purposes of the Constitution. “
According to Justice Bhat, the states can make suggestions to the President of the Commission for ‘inclusion, exclusion, or modification of castes or communities’ in the SEBC list through their existing mechanisms or statutory commissions.
In this appeal, two judges agreed that the states’ power to make reservations in favour of communities or castes, the quantum of reservations, the nature of benefits, and the kind of reservations – except for the identification of SEBCs – should remain intact.
Nevertheless, all five judges ruled that the 102 Constitutional amendment was valid and did not affect federal polity or violate the Constitution’s basic structure.

Power of states to make their own OBCs list

NCBC Act 1993 was passed taking the motivation from Indira Sawhney judgment in that Section 2(c) defines lists as “lists prepared by the Government of India from time to time for purposes of making provision for the reservation of appointments or posts in favour of backward classes of citizens which, in the opinion of the Government, are not adequately represented in the services under the Government of India and any local or other authority within the territory of India or under the control of the Government of India”.

In Shiv Sangram v/s Union of India and others (2021), the High Court noticed the parliamentary process including the report of the Select Committee and the issue was raised whether the Constitution (One Hundred and Second Amendment) Act, 2018 affected the Legislature’s ability to enact legislation. The High Court held that the Central List used in sub-clause (2) of Article 342A is not in a vacuum but must be read in the context of considering that there are two lists in operation in various states for providing both Central and state services. The High Court ruled that since the Central Government has given the State Governments the power to provide reservations via the Central List as well, the Parliament was intended to retain this power. Additionally, if Parliament had intended to strip the State of its authority, it would have explicitly stated as such. The High Court rejected the argument of the learned counsel for the appellants that the Constitution 102nd amendment robbed the State of its power to legislate on behalf of other backward categories.

Current status : Centre restoring states’ power to decide the OBCs list

By bringing a 127th Constitutional Amendment Bill, the Centre will give back the states the power to decide about reservations for Other Backward Classes (OBCs) in state government jobs and higher educational institutions.

The purpose of the Bill is to overturn the ruling of May 5, 2021, in the case of Dr. Jaishri Laxmanrao Patil v. Chief Minister in which a 5-judge Constitution Bench of the Supreme Court ruled that only the President can declare a community an OBC, upon recommendation by the National Commission for Backward Classes (NCBC). On the review petition filed by the Centre, the judgment was upheld early this July.

The draft Bill prepared by the Ministry of Social Justice and Empowerment seeks to add a clarification clause in Article 342A which says that states are given the power to identify and include OBCs or socially and educationally backward classes in their respective lists. By law, the amendment is not in conflict with the Apex Court’s decision.

Two new clauses were added to Article 342A in the 102nd Constitution Amendment, the first clause provides the President with the power to declare backward classes in consultation with the state Governor. Another clause (2) was added which provided that Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class.

Article 342A(3) has been inserted in the 105th Constitutional Amendment Act, which specifically states that the state governments have the authority to notify OBCs on the state list, removing their handicap caused by the Apex Court ruling preventing them from including any new OBCs for reservation purposes.

Conclusion

In the author’s opinion, it is the right step to restore the power to decide and maintain OBCs list in states as it will bring more transparency at the state level and people can greatly benefit from it. On August 10, the Lok Sabha and on August 11, the Rajya Sabha passed the legislation. Ram Nath Kovind has given his assent to the Constitution (105th Amendment) Act 2021, which restores state governments’ ability to designate Other Backward Classes.

References

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Are design patents economically feasible and why should designers resort to them for protection

By

Abanti Bose

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October 6, 2021

0

understanding_your_design_patent (1) — Image Source: https://rb.gy/lflj8d

This article is written by Valli Rachana, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Dhruv Shah (Associate, LawSikho) and Dipshi Swara (Senior Associate, LawSikho).

Table of Contents

Introduction

1937 Coca Cola Bottle Design Patent Art 5 Drawing by Nishanth Gopinathan

“Design is intelligence made Visible”, Alina Wheeler. Looks matter. Visual image matters, when one designs a product. The first quality about the product that attracts the customers to approach is “good looks”.

Here comes the rescue of all the designers by protecting their designs by applying for a ‘Design Patents’. A Design patent gives protection to the outer appearance of a design or ornamentation. It should be novel, non-functional and non-obvious. In an application for a design patent, the designer must claim certain features of the design that he/she wants to protect.

Design patents are not fully utilized by the designers for the protection of their work. Therefore, many designers do not protect their Intellectual property under design protection. Still, in the market, there are many copycats who create ‘knockoffs’ which can threaten the authenticity of the original designers. As a result, both the designers face rivalry.

Design patents are helpful to the designers as they give them the right to exclude others from making similar goods. Moreover, a designer can obtain a separate design patent for each element of a design which will expand the design protection.

Design patent : ornamental designs of functional items

Design Patents | Finnegan | Leading Intellectual Property Law Firm

Design patent law gives protection for the outer image design elements of a functional product. Such as clothing, product packaging, the shape of the product. The design characteristic must be ornamentation applied to a functional product that cannot be detached from that product. Simply put, the way the ‘thing’ looks.

However, if the look of the design is dictated by the function that it performs, then the design is said to lack ornamentation and cannot receive design patent protection. If a design aspect is functional then a “utility patent” is the only way to protect the design aspect.

A design patent can be protected for a series of figures, pictures or illustrations of the design. The claim will generally reference the figures and descriptions that are present in the application. The Patent and Trademark Office will review the application for compliance with formalities and ensure that the design is “new.”

Once a design patent is granted, the patent holder holds the right to prevent others from copying, using, selling/ making the products of the protected designs. This way, one can protect the unique look of a product (Clothing, handbag etc) for a period of 14 years.

If a designer not only designs an aesthetically innovative garment, but also one that includes advances in the function of the garment then additionally it might be crucial to consider filing a utility patent.

Are design patents economically feasible?

In the recent past, design patents were underutilized and did not hold any consequential value. But, in current times, design patents have increased in the number of applications and hold high value. One should take the design patents protection seriously and should not allow the misuse of their protected design by others. One can always go for both design patent and utility patent application together thereby protecting both the looks and functionality of a product. The designer should be confident about the looks of his/her design before pursuing design protection.

There are some very appealing advantages to design patents. They are relatively inexpensive. A typical design patent application can be prepared and filed for less cost compared to a typical utility patent application. Design patents tend to issue much more quickly than utility patents.

In our experience, design patents are issued within 10-16 months after filing; whereas, utility patents take anywhere from 24-48 months.

Accordingly, if one wants to list their product as “patented” sooner rather than later, a design patent might just do the trick. When the look of an invention is an important aspect or consideration of the invention, the designer should discuss with one’s own patent attorney before applying for a design patent.

Registration of design patents

A design patent protects the way a product looks, as opposed to a utility patent which protects the way that a product is used and works. A design patent provides protection for novel, ornamental product designs. Protection can be afforded to configuration or shape, surface ornamentation or both. Design patents are thus typically used in industries where the product’s outer qualities are of special significance, such as clothing and accessories.

While some brands such as Gucci have been using design patents for many years, incorporating design patents into an IP strategy has only recently become more widespread. In recent years companies within the fashion industry have increasingly recognized the importance of design patent protection. As a result of this trend, there has been a significant increase in design patent applications being filed for clothes and accessories.

Even though design patent law is becoming increasingly popular as a means for designers to protect their works, its full potential has not yet been fully exploited. Although trends come and go as time lapses, some trends remain classics forever. If appropriate design protection is not given for these successful trends, copycats will be able to copy them very easily.

Thus, when designer companies anticipate that a new product may have a long life span, it is strongly recommended to file an application for a registered design to protect their product from competitors in the market.

Advantages of strong design patent

There are numerous advantages of strong design patents. They help in fighting legal battles with copycats and competitors to protect their designs. Such infringers tend to copy or imitate only the designs – not the marks – meaning that trademarks are little help in defending the brand. However, a cease and desist letter citing a design patent carries significant weight. It warns the infringer that the patent holder is serious about protecting its designs and ready to take legal steps against infringement.

The rise in the number of design patent registrations has already resulted in an increase in litigation in this area.

The requirements to obtain a strong design patent protection

The requirements to obtain a strong design patent protection are by designing the outer image of the product in a unique style. It is the first and foremost quality to qualify for design registration. Smell, colour, sounds do not qualify for design protection as they fall under trademarks and do not constitute the appearance of a product. Another important requirement is a design patent is available only for creations that are new and original.

Designs should be new and possess individual character in order to be protectable. A design is considered to be new if no identical design or no design differing only in tiny details has been disclosed before it. Moreover, a design possesses individual character if the overall impression conveyed to the user differs from that conveyed by any other previous designs.

Finally, a design must be correctly and accurately represented in the application in order to qualify for strong protection. Designs should be represented graphically using technical drawings, which can be made either in black and white or in colour. Up to seven different views of the product can be filed in order to represent the design and these views may be plain, in elevation or in perspective. However, no explanatory text, wording or symbols can be added to explain the design.

The purpose of graphical representation is to display all features of the design that the company wishes to protect. It is thus important to be extremely careful when preparing the application in order to ensure that the features of the design are displayed as thoroughly as possible. The quality of representation is also paramount.

The last requirement is that the design respects public policy and morality standards. For example, the registration of designs promoting violence or discrimination will be refused.

Its substantive examination is limited to two issues:

Whether the design represents the appearance of the whole or part of a product; and
Whether the design contains an element that goes against public policy and morality.

Thus, a design patent can be validly registered by WIPO even if it does not meet the necessary legal requirements. In such cases, obtaining a registered design patent does not guarantee 100% protection and it is uncertain how effective such a design patent will be when challenged before a court by a competitor. There is a risk that the design patent could be declared invalid and cancelled by the judges. Fashion houses should thus be extremely careful when applying for design patent protection in order to obtain a strong protection right which will be useful in case of litigation.

Conclusion

Designers have multiple options of Intellectual property to choose from the protection of their products. Each product requires different forms of protection depending on its features and qualities. According to the current market and the available budget, a designer can seek the type of protection needed. It is strongly suggested that a designer should seek advice from the trusted and experienced counsel in design patents on how to protect products without any legal complications.

Developing a comprehensive and effective IP strategy to protect a design requires time and money. Registering design patents, utility patents or trademarks involves a significant cost. However, by protecting intellectual capital in the form of IP assets, companies can improve their position on the market and boost their income. Moreover, the IP system also allows companies to combat counterfeiting and reduce the risk of their IP rights being infringed.

When used together, design patents, utility patents and trademarks can form complete and holistic cover to ensure strong protection for valuable designs.

Consequently, designer houses should balance the level of protection offered by different IP rights with their business goals and budgets.

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Indian Parliamentary Group (IPG) : all one needs to know

By

Rachit Garg

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October 6, 2021

0

parliament-1470372959 — Image source - https://bit.ly/3vLbIBo

This article is written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of the Indian Parliamentary Group (IPG).

Table of Contents

Introduction

Increased diplomatic relations among nations across the world have been responsible for uniting various nations thereby promoting international relations. The Indian Parliamentary Group (hereinafter referred to as “the group”) is one such group of our democratic nation that promotes parliamentary diplomacy with several countries, strengthening democratic institutions and validating transparency. It is significant to point out that fostering inter-parliamentary relations has been carried out for several years now. But the same has gained the spotlight in recent times due to the steady surge of interdependence among nations in today’s global environment. This has facilitated Parliamentarians from different countries to meet, and discuss the upfront challenges possessed by democracy. Collaborative efforts yield positive results which in turn helps in the overall growth and development of a democratic nation. The Indian Parliamentary group being an autonomous body saw the light of the day in the year 1949 as pursuance of a motion that was adopted by the Constituent Assembly on 16th August 1948. As inter-parliamentary relations assume great importance in today’s dynamic world, there arises a need for a link to exist between different parliaments present in this world. The scenario in India concerning this link has remained active due to the machinery of the Indian Parliamentary Group that has carried out goodwill missions, exchanges of delegations for several years now. This machinery thus acts as a National Group of the Inter-Parliamentary Union (IPU) as well as the Indian Branch of the Commonwealth Parliamentary Association (CPA). This article will help the author gain the necessary knowledge about this machinery.

Composition of the Group

Before delving into the composition of the group it must be known that there exist no formalities behind the formation of an Inter-Parliamentary Group. Further, its admission to the Union which is a Federation of National Groups also avoids formalities. A group can be formed in each of the Parliament by the members of the National Parliament of respective countries. It may be constituted all by itself, and membership of the group shall be announced. Being active for over sixty years now, the Indian Parliamentary Group has opened its membership for all the members of the Parliament. The Group must be comprised of the following individuals along with the members:

The Speaker of the Lower House of the Parliament, Lok Sabha as ex-officio President;
The Deputy Speaker, and the Deputy Chairman of the Lok Sabha, and the Rajya Sabha respectively as the ex-officio Vice Presidents of the Parliamentary Group; and
The Secretary-General of the Lok Sabha taking the position of ex-officio Secretary-General of the Indian Parliamentary Group.

The Secretariat of the House has been provided with some responsibilities which are necessary for the effective functioning of the Group; namely:

Enrolling the members of the Parliamentary Group;
Holding various meetings of the Group such as Annual General Meeting, Executive Meeting, etc;
Handling the accounts of the Group.

Room for former members of the Group has also been made provided they become associate members of the Parliamentary Group being entitled to a set of restrictive rights only such as:

They cannot take part in the meetings, conferences, and discussions held by the Indian Parliamentary Group as a representative.
They are prohibited from any kind of travel concession that the general members are entitled to.

There are currently eight Parliamentary Friendship Groups of India namely:

India-China Parliamentary Friendship Group.
India-European Union Parliamentary Friendship Group.
India-Japan Parliamentary Friendship Group.
India-Mongolia Parliamentary Friendship Group.
India- Republic of Korea Parliamentary Friendship Group.
India- Russia Parliamentary Friendship Group.
India-Vietnam Parliamentary Friendship Group.
India- Latin American Countries Parliamentary Friendship Group.

Aims and objectives of the Group

The Indian Parliamentary Group was formulated with certain aims and objectives which have been laid down hereunder:

Promoting personal contacts among Indian Parliamentarians;
To work towards the establishment of peace, harmony, arbitration, prosperity, and cooperation among various nations across the world;
Arranging political discussions, and suggestions on the development of Parliamentary institution, lectures on socio-economic needs, challenges in the field of education, defence, etc by the distinguished members of the Parliament;
Making arrangements of foreign visits for the Parliamentarians with the underlying aim to build successful contacts with members of Parliament of other nations.

Based on these aims, and objectives; the Indian Parliamentary functions have been discussed below.

Functions of the Group

Functions that are majorly undertaken by the Indian Parliamentary Group have been presented hereunder;

As has been discussed previously, the Indian Parliamentary Group acts as a platform that connects the Indian Parliament with other Parliaments across the globe. This platform is maintained by means of efficient diplomatic practices such as delegation exchange, hosting conferences, signing of treaties, foreign country visits, bilateral talks with the foreign parliaments.
The Indian Parliamentary Group addresses the worldwide Parliamentarians by means of sending over delegates to foreign nations thereby aiming to increase cooperation, and harming that country.
The two major functions of the Indian Parliamentary Group which it started carrying out from the date of its formation are being a National group of the Indian Parliamentary Union, and being the main branch of CFA in democratic India.
In order to maintain a balanced relation with other nations, communication, and discussions on various topics that are common between the domestic, and the foreign nation, are the two driving tools. Therefore, the Indian Parliamentary Group has a definite role in conducting seminars, and symposia on subjects that locate interests at both national, and international levels. This effort of bringing nations together is often successful.
Assistance is required to carry out development and maintain the stable growth of the nation. The Indian Parliamentary Group, while sending its members abroad for visit, makes it necessary for them to communicate their aims and objectives to Parliamentarians of foreign States.
Bilateral relations play a key role in bracing diplomatic relations with foreign countries. The Indian Parliamentary Group promotes such relations by constituting Friendship Groups thereby building social, political, cultural contacts between nations. This process also involves exchanging cultural information, views on similar issues of the countries, etc.
Awards help in validating the work which the members of the Parliamentary Group relentlessly perform in strengthening India’s diplomatic ties with foreign countries. Therefore, in accordance with the decision of the Group, the award of Outstanding Parliamentarian, instituted in 1995, is given on a yearly basis. The function of the Group, in this case, is to finalize the nominees for this award.
The Indian Parliamentary Group maintains an IPG Newsletter on a quarterly basis that provides a hurdle-free flow of information to the Group members, and the associate members, in relation to the activities that the Group carries out.
Indian Parliamentary delegations involve only those members of the Group who have been holding the position of membership for a period of six months, or more at the time when the delegation is composed.

These are not the only functions that the Indian Parliamentary Group performs, but are majorly covered by the Group. With increased complexities in the international relations among countries on a day-to-day basis, the Parliamentary Group encompasses functions taking into account the demands put forth by such complexities.

The Group and IPU

We have previously come across the term Inter-Parliamentary Union (IPU) in this article which in general signifies an international organization with 153 Parliaments at present belonging to different sovereign States around the world. With an aim to work towards ensuring peace, harmony, and cooperation among nations, the Inter-Parliamentary union plays the role of coordinating and exchanging experiences among Parliamentarians who belong to different member countries. Being the Union of Parliaments of different member countries, the IPU takes up questions that are frequently popping up in today’s fast-growing world, with global climatic change being one of them. Allowing exchange of views on subject matters taken up, the Union promotes logical disposal of the concerned issues with robust solutions for the nations to adopt. The discussion doesn’t end here in relation to the Inter-Parliamentary Union as its role in ensuring implementation of every parliamentary action thereby improving the working potential of the Parliaments of its member nation, cannot be ignored.

The Indian Parliamentary Group is working in close association with the Inter-Parliamentary Union by the former holding several significant positions in the latter of an office bearer, Chairman of Drafting Committees, Rapporteurs, etc. This has helped the Parliamentary Group in putting forth India’s interests in global issues at the Union’s platform. The healthy relation between the Indian Parliamentary Group and the Inter-Parliamentary Union has fostered the growth of India’s diplomatic relations with foreign countries.

The Group and CPA

Just like the Inter-Parliamentary Union, the CPA is a 17000 Commonwealth Parliamentarians organization that has been formulated with the aim to upgrade knowledge associated with the economic, social, legislative, constitutional systems that exist within a Parliamentary system of a country. This organization is dynamic in its approach as it works parallel to the global advancement of democratic systems. The main branch of CPA in Indian territory is the Indian Parliamentary Group. This comes with a set of advantages for the Parliamentary Group which have been provided hereunder;

Being a member of CPA, India can participate in global seminars, and conferences.
Members of the Group get access to “ The Parliamentarian” newsletter.
Access to travel, and Parliamentary facilities.
Members of the Group can have a divergent vision on any kind of issues taken up for discussion because of the exchange of views with members of the Parliaments belonging to other nations.

Conclusion

As we come to the end of the discussion concerning the Indian Parliamentary Group, it is necessary to mention that not everyone in this democratic nation is acknowledged with this Group, and its associated functions, objectives, and development. The Group has been a stable backbone of India as a democratic nation thereby gaining relevance over the years. As an autonomous body, the Indian Parliamentary Group has achieved noteworthy heights as India has been active in building friendly relations with not only its neighbouring nations but also countries around the globe.

References

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Recognising recent trends and patterns in the appointment of judges to the Supreme Court

By

Rachit Garg

-

October 6, 2021

0

This article is written by Gursimran Kaur Bakshi. This article will examine the recent trends and patterns in the appointment of judges to the Supreme Court.

Table of Contents

Background

Recently, the President of India, Ram Nath Kovind gave his assent to the appointment of nine judges to the Supreme Court of India (SC) as per Article 124(2) of the Constitution of India. Out of the nine judges that have been recommended by the collegium, four are sitting chief justices of High Courts (HC) namely, Justice Abhay Oka from Karnataka, Justice Vikram Nath from Gujarat, Justice K.K. Maheshwari from Sikkim and Justice Hima Kohli from Telangana. Whereas, four are HC judges namely, Justice B.V. Nagarathna from Karnataka HC, Justice Bela Trivedi from Gujarat, Justice C.T. Sivakumar from Kerala and Justice M.M. Sundaresh from Tamil Nadu. One senior advocate, P. Narasimha, has also been appointed.

The notification of the collegium is significant as for the first time, three female judges have been recommended to the SC. India is also set to get its first female Chief Justice of India (CJI) Justice Nagarathna for the period of 23 September, 2027 to 29 October, 2027. At present, with just one vacancy out of the sanctioned strength, the SC for the first time has the highest strength after a long period of impasse on the appointments of judges.

How does appointment of judges to the Supreme Court takes place

The appointment of judges to the SC and HC takes place through the system known as Supreme Court Collegium. The current sanctioned strength of the SC is thirty-four judges out of which at present twenty-four are serving the highest Court of the land. Earlier, the maximum strength was thirty judges excluding the CJI which was set through the Supreme Court (Number of Judges) Act, 1956. This was amended through the Supreme Court (Number of Judges) Amendment Act, 2019 which increased the strength of judges to thirty-four including the CJI.

There is no specific mention of the term ‘collegium’ in the Constitution of India. The same has been evolved through three judges cases (S.P. Gupta v. Union of India (1981), Supreme Court Advocates-on-Record Association v. Union of India (1993), and Special Reference No. 1 of 1998, re (1998) ) as a part of Article 124 of the Constitution of India. To know more about these cases, please refer here.

Thus, according to the Memorandum of Procedure (MoP) for the appointment of judges, issued by the government, whenever there is a vacancy at the SC, the CJI will initiate the procedure for appointment by recommending the name of the judge to the Ministry of Law & Justice (Law Ministry) after consultation with the CJI along with the four senior-most judges of the SC. The CJI along with four senior-most judges is what is known as a collegium system on the appointment of judges. The Union Law Minister will send the same to the Prime Minister who shall along with the Union Cabinet advise the President to give his assent.

The collegium system was supposed to be replaced by the National Judicial Appointment Commission (NJAC). The NJAC was approved by the Parliament through the Constitution (Ninety-Ninth Amendment) Act, 2014. Unfortunately, it was held unconstitutional and void in Supreme Court Advocates on Record Association and Others v. Union of India (2016) for compromising the integrity and independence of the judiciary.

What are the recent trends in appointment of judges to the Supreme Court

The recent trends and patterns of appointments are failing to meet expectations because the appointments are not regular and are often criticised for being politically influenced.

The irregular pattern of appointment

The recent recommendation of these nine judges came after a long period of impasse. During the tenure of CJI SA Bobde, no recommendations were made by the collegium despite the fact that there were a lot of vacancies to be fulfilled. CJI Bobde remains the only CJI in the judicial history that has not made any recommendation for the SC along with the collegium.

The present collegium is headed by the CJI NV Ramana along with Justices U U Lalit, A M Khanwilkar, D Y Chandrachud, and L Nageswara Rao. The reason why the Court lacks the sanctioned strength is because of the irregular patterns of appointment which are visible from the fact that the last time the collegium recommended the elevation of judges was in 2019. There is a reason why the collegium system is criticised for being a self-selecting body. Moreover, this was the first time nine judges were recommended by the collegium with consensus.

In 2019, the collegium passed two resolutions. The first was a resolution for reconsideration of the appointment of Justice Aniruddha Bose (Chief Justice, Jharkhand HC) and AS Bopanna (Chief Justice, Guwahati HC) to the SC. The central government had opposed the recommendations when they were first made. Along with this, two new recommendations were made of Justice Ramkrishna Gavai (Judge, Bombay HC) and Surya Kant (Chief Justice, Himachal Pradesh HC) by the collegium. There were questionable delays over the appointment of Justice Bose and Justice Bopanna to the SC.

Notably, according to the Print, during this time, the collegium had also recommended 14 names for the elevation as HC judges. But the Law Ministry had rejected the recommendations. Out of the 14 names, two names were rejected twice. This was considered as a violation of the MoP which states that the decision of the collegium is binding if the recommendation is reiterated by the collegium the second time. In the NJAC case, the Supreme Court has observed that the primacy of the judiciary is a part of the basic structure and thus the recommendation based by the collegium shall be binding. However, the government is yet to make changes in the MoP inculcating the directions of the Court as per the case.

Thus, the legitimacy of MoP has been in question from time to time as the government is seen to have ignored the procedure which is supposed to be strictly followed to ensure fairness in judicial appointments.

The collegium system is not free from political interference

Since the current appointments are being discussed, the name of Justice Kureshi (may also be read as Qureshi) cannot be missed. Justice Akhil Kureshi (Chief Justice, Tripura HC) is the second-most senior judge who was recommended by the collegium way back in 2019 when he was a judge at the Gujarat HC. But his appointment has not been approved yet. It has been alleged that his appointment has not been cleared because he was a judge in the Sohrabuddin Sheikh encounter case and had sent the then Home Minister of Gujarat and now the Home Minister Amit Shah to police custody. He had also been previously transferred by the collegium on numerous occasions often attracting constant criticism from the legal community.

On controversies mired over the appointment of Justice Kureshi, it is said that Justice RF Nariman has refused to make any new recommendation when he was a part of the collegium until Justice Kureshi is elevated. This was also one of the reasons why there was a stalemate for a long time in the collegium over the appointments which almost extended to 21 months.

It is true that the collegium ultimately depends on the assent of the President which is fully influenced by the Union Cabinet. Article 74 of the Constitution of India restricts the power of the President to make independent choices because all his functions are to be aided and advised by the Union Cabinet headed by the Prime Minister.

Further, Justice KM Joseph (Chief Justice, Uttarakhand HC) was recommended by the collegium in 2018. But his name was rejected by the Law Ministry for elevation. The collegium had again reiterated his recommendation and according to the MoP and NJAC case, the Ministry was bound by the decision of the collegium. But the approval of his recommendation was unnecessarily delayed although it was said to have been accepted later. It was speculated that the government had rejected his recommendation because the Chief Justice had ordered against the Presidential Rule in Uttarakhand in 2016 [Shri Harish Chandra Rawat v. Union (2016)].

In 2014, the appointment of senior lawyer Gopal Subramaniam as the Judge of the SC was rejected by the central government. Elevation to the SC can be made both from the Bar and Bench. Thus, senior advocate Subramaniam’s appointment was recommended by the collegium to be elevated from the Bar to Bench, headed by Justice RM Lodha. Later, senior advocate Subramaniam had withdrawn his candidature and he even stayed away from practice till the tenure of Justice Lodha because of this appointment being turned down by the government.

Hence, the delay on the part of the government based on political or apolitical grounds is an important factor that compromises the independence of the judiciary.

The MoP fails to address pertinent issues on judicial appointments

The MoP, which is the most important document in judicial appointments, is silent on the maximum number of judges that can be elevated from each HC to the SC. According to Justice Kureshi’s seniority which is decided on an all-India basis, he should have been recommended by the current collegium since there is still one vacancy pending at the SC. But that is unlikely since there are adequate representations at present from the Gujarat HC which happens to be his parent court.

The MoP also fails to clarify many issues regarding the appointments such as the time frame in which the Law Ministry will have to clear the names of judges recommended by the collegium. Because of this, many times the appointments are stalled for no reason such as the one that happened in Justice Kureshi’s appointment.

The MoP does not mention anything about the proportionate representation of judges for all weaker sections of society. It should also be noted that the whole process of appointment remains undisclosed and thus, does not go through any kind of public scrutiny.

Moreover, because of the lack of clarity and delayed process, there are judges who are on the verge of retirement but do not get the chance to serve the SC. The MoP does not mention whether they can still be appointed to the SC. Since there is no express restriction on the same, this is a concern that needs to be addressed by the collegium because a judge of the HC retires at the age of 62 whereas, a judge of the SC retires at the age of 65 (Article 124). This means that even if a judge retires from the HC at the age of 62, he still can serve in the SC for three years.

No adequate representation of weaker classes

There is no adequate representation of weaker classes as the first judge of a Scheduled Caste community after Justice KG Balakrishnan was appointed in 2019. Justice KG Balakrishnan also became the first Chief Justice of India from the Scheduled Caste community.

According to the collegium, Justice Ramkrishna Gavai’s elevation to the SC is significant as it reflects the due representation of all classes. Justice A Vardarajan was the first judge to be appointed to the SC from the Scheduled Caste community in 1980. Currently, the SC has two sitting judges from the Scheduled Caste community. These are Justice Gavai and Justice C.T. Sivakumar. The latter has been recently elevated to the SC.

Similarly, the first judge appointed by the Other Backward Classes (OBC) community was Justice SR Pandian in 1988. At present, Justice M.M. Sundaresh who has been elevated by the SC recently belongs to the OBC community. Whereas, to date, there is no appointment of a judge to the SC from the Scheduled Tribes. Their inadequate representation also signifies that they are still institutionally marginalised.

At present, there are only four women judges appointed to the SC. Out of the four, Justice Indira Banerjee (Judge, Bombay HC) was elevated in 2018 and the other three judges, namely, Justice BV Nagarathna (Judge Karnataka HC), Justice Hima Kohli (Chief Justice, Telangana HC) and Justice Bela Trivedi (Judge, Gujarat HC) were elevated recently. Apart from the four female judges, there are only a few female judges that have ever been appointed to the SC. The highest Court got its first female judge, Justice Fathima Beevi, only in 1989. There is a need to increase the number of appointments of female judges to the SC for balancing the parameters of gender equality.

Apart from the inadequacy of weaker classes, the top court also does not have due representations from all the HCs in the country such as from states like Jammu & Kashmir, Uttarakhand, Sikkim, Meghalaya, Orissa to name a few.

Further, as stated above, according to Article 124 of the Constitution of India, the appointment to the SC is not just made from the HC only. Appointment can also be made from Bar (practising advocate) and also of a distinguished jurist. Not once has the collegium has recommended any distinguished jurist to the SC. Whereas, the elevation of a practising advocate to the SC is less than 4%.

While adequate representation is the need of an hour, it should also be noted that there is no reservation in the judicial appointments to the SC. The current unbalanced appointments do entail one to ponder on the need for reservations. However, to be able to address the issue of adequate representation, the first step should be to ensure proportionate representation which is also not present in the current appointments.

Irregular recommendation on the transfer of judges

The appointment pattern to the SC is also impacted by the irregular transfer of judges to different HCs. Last year, Justice S. Muralidhar was recommended for transfer from the Delhi HC to the Orissa HC as the Chief Justice of Orissa HC. Although he was elevated as the Chief Justice of the HC, thIS recommendation was sudden and unpredictable. Justice Muralidhar was a part of an extremely sensitive case concerning the protests on the Citizenship Amendment Act, 2019. He had come down heavily on the Delhi Police Administration for their inability to take action against the BJP politicians who were involved in hate speeches. His transfer came hours after his order on the case concerning the politicians and the case was even transferred to the Chief Justice’s bench. The transfer process does hamper the elevation to the SC because it challenges the process of transparency.

Conclusion

There are genuine challenges to the transparency and accountability of the whole process of the collegium system. Even though NJAC was challenged on the grounds that it would compromise the independence of the judiciary by allowing the direct influence of the executive, the same is still present in the current process.

The recommendations made by the collegium for elevation are stagnant whereas its recommendation for transfer is often questioned by the legal fraternity. Since the idea of NJAC has been rejected, the SC has maintained some kind of judicial supremacy in judicial appointments. However, judicial supremacy in a democratic country cannot be allowed. Thus, checks and balances need to be adopted by the collegium for enhancing transparency and fairness in the process while addressing the issue of judicial vacancies. This can only be achieved by improving the process of judicial appointments by making significant changes in the MoP. Lastly, the procedure for the appointments must not escape public scrutiny to maintain overall fairness.

References

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